1708003 (Refugee)

1708003 (Refugee) [2018] AATA 5931 (3 July 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1708003
COUNTRY OF REFERENCE:                  India
MEMBER:Michael Hawkins
DATE:3 July 2018
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 03 July 2018 at 6:19pm

CATCHWORDS
REFUGEE – protection visa – India – political membership and activity – credibility – inconsistent evidence – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65
Migration Regulations (Cth), Schedule 2
CASES
Kavun v MIMA [2000] FCA 370
MIAC v MZYYL [2012] FCAFC 147
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Subramaniam v MIMA (Carr J,10/3/98)
Subramaniam v MIMA (1998) VG310 of 1997
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51
Velauther Selvadurai v MIEA [1994] FCA 1105
Zhang v RRT [1997] FCA 423
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 on 17 March 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of India, applied for the visa on 3 August 2016. The delegate refused to grant the visa on the basis that the applicant is not a refugee as defined by s5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to his receiving country, there was a real risk he would suffer significant harm.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Relocation
Under s.36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm. The Tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.
State protection
Under s.36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL [2012] FCAFC 147.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background:
The applicant is an [age] year old man from [Village], Province of Punjab, India.
The applicant is of the Sikh faith, is of Punjabi ethnicity, and speaks Punjabi and can read and write in English.
The applicant is single. His two parents and [sibling] live in India.
The applicant completed education to Year [number] in India in April 2016.
The applicant stated in his application form that he has never worked.
The applicant arrived in Australia [in] May 2016, under Passport [number], issued [2014] and expiring [2017] pursuant to a [temporary] visa granted on 5 May 2016 and expiring 4 August, 2016.
The applicant applied for a protection visa on 3 August 2016.
The applicant attended an interview with the delegate on 23 February 2017. Immediately prior to this hearing, the applicant presented some documents including a letter from the Shiroman Akali Dal Party (“SAD”), an article about a Sikh from the UK and some pages with text upon them about a Sikh being imprisoned for 225 days. He also provided a copy of his statement.
Claims:
The applicant claims that whilst he was growing up the applicant became aware of the atrocities committed against the Sikhs by the central and state government.
The applicant claims that while he was completing his school certificate, the applicant became affiliated with the banned "All India Sikh Student Federation (SSF)" despite his father's objection. He was motivated by the prospect of a separate state of Khalistan, and to take their revenge.
The applicant claims that he was outspoken about the atrocities committed against Sikhs.
The applicant claims that [in] January 2016 he was arrested by the local police from his house in the morning. He was interrogated by the Punjab Intelligence Branch. He was tortured and after six hours he was released with strict conditions.
The applicant claims that after his release his father restricted his movement. He only had contact with other SSF members via telephone. He was not deterred by the interrogation and pursued his SSF work.
The applicant claims that he organised mini meetings amongst area youth and was distributing leaflets.
The applicant claims that in February he attended a highly confidential meeting at a friend's farmhouse. Suddenly they realised the house was surrounded by police. Six of the members were arrested, and the applicant and the others escaped.
The applicant claims that the police were searching for him everywhere and visited his house twice. His father bribed the local police to stop arresting him.
The applicant claims that his father paid money to delete his name from a list to depart Australia.
The applicant claims that since the applicant has arrived in Australia, he was told that the Punjab police organised a new task force to combat the current growing conflict. They have started to arrest those people with previous records.
The applicant claims that if he goes back to India he will be arrested and perhaps killed by undercover agents.
The applicant claims that he is seeking protection in Australia to avoid further serious harm in India and to save his life.
Evidence:
The Tribunal has before it a range of material, including, relevantly:
·The applicant’s protection visa application forms completed and signed on 1 August 2016, lodged on 3 August 2016 (“visa application”);
·The applicant’s identity documents being a certified copy of passport;
·The protection visa decision record (‘delegate’s decision record’) of 17 March 2017;
·The review application form which did not include a copy of the delegate’s decision record;
·Country information from the applicant’s submissions and other sources, as discussed at the Tribunal hearing. The Tribunal has also had regard to the Department of Foreign Affairs and Trade’s (DFAT’s) most recent Country Information Report on India, published on 15 July 2015, and DFAT Thematic Report Indian State of Punjab, published on 7 December 2016.
Country of reference / receiving country
The applicant claims to be an Indian national. Based on the copy of his passport provided to the Department of Immigration and Border Security (The Department) by the applicant and at the hearing, and in the absence of any other evidence to the contrary, the Tribunal finds that India is his country of nationality and also his receiving country for the purposes of s.5(1) and s.36(2)(aa) of the Act.
Hearing:
The applicant attended the hearing on 18 June 2018. He was not represented. The hearing was assisted by an interpreter in the Punjabi and English languages.
The Tribunal asked the applicant about the completion of his Protection Visa application forms. The applicant said he filled out the forms himself, and typed the statement of claims with the assistance of a lawyer. He said he signed the forms himself. The Tribunal asked the name of the lawyer, but the applicant could not remember.
The Tribunal asked the applicant about his departure from India and if he experienced any issues at Immigration? The applicant said he had no problems leaving India and had no issues at either the Indian or Australian immigration sections.
The Tribunal asked the applicant why he left India. The applicant said he was in danger. The Tribunal asked what he was in danger of. The applicant said he was with the SSF. The Tribunal asked what he meant by “with”. Was he a member? He said he wasn’t a member. He was just with them. When asked again what was meant by being with them, he said the SSF liked to get Sikh’s involved, to help other Sikhs. The Tribunal asked again what he meant by being in danger because he was with the SSF. The applicant replied that it was because he was with the SSF. He said he is in danger because Sikh’s are in danger. The applicant referred to an article he tendered immediately before the hearing – an article written about a Canadian citizen who was a Sikh who was imprisoned in India. The Tribunal considered the article. It asked where the article came from. The applicant said it came from India – that his family sent it to him. The Tribunal noted that it was a copy and asked did he have the original. What was the official source of the article? He didn’t know. The Tribunal noted it was a poor copy, about a Scottish citizen, with the tops and bottoms cut off on each page. It noted that it appeared to be a press release of the Sikh Federation in London, not a newspaper article at all. The Tribunal noted that it was a copy, of a press release from the Sikh Federation, and as such was a political statement. The Tribunal accorded the article little weight
The Tribunal read to the applicant his claims as set out in paragraphs 22 to 33 above. The Tribunal asked the applicant if the claims as read to him were accurate. He said they were. The Tribunal asked if his claims were complete, and whether he had any additional claims. He said he did not.
The Tribunal discussed with the applicant why it took him three months to make his protection claims, noting that he made an application for a protection visa one day before his [temporary] visa was due to expire. The applicant said he didn’t know about protection visas.
The Tribunal asked the applicant about a letter he had presented to the Tribunal before the hearing.
The Tribunal discussed with the applicant the document he had presented to the Tribunal at the hearing – the copy of an apparent letter from the Shiromani Akali Dal Party.
The Tribunal asked the applicant why he had presented this document to the Tribunal. The applicant said it was all in the letter. The Tribunal acknowledged that there was information in the letter but wanted to understand why it had been given to the Tribunal. He said the letter will save his life. The Tribunal advised the applicant that the letter is three pages long – what else did it say. It was apparent to the Tribunal that the applicant had little idea what was in the letter. The Tribunal advised the applicant that the letter advised that the applicant is a supporter of the SAD as is his grandfather and uncle. The applicant said yes. The Tribunal asked the applicant whether he participated in the party or its activities. He said he did not. The Tribunal confirmed again that he did nothing within the party. He agreed. The Tribunal noted that the letter stated that he was a supporter in 2014, which would have made him [age] years old. The Tribunal asked how he could have joined with the SAD when he was only [age] years old. He replied that it was because they were all Sikhs.
The Tribunal advised that the letter said that the applicant has “been giving support in our meetings, rallies, and demonstrations against violation of human rights and atrocities on the Sikhs. He used to attend rallies, distribute fliers, serve food and water to the participants, set up tents, pasting posters etc.” The applicant agreed that he did these things. The Tribunal asked how the applicant could explain that one minute ago he told the Tribunal that he did nothing active and did not participate within the party but now agreed, when it was read to him, that he did quite a lot of things for the party. He said he did those things.
The Tribunal noted that the letter went on to say that “he took active part in various programs organised by our party”. The Tribunal asked what those programs were. The applicant said he was with them.
The Tribunal asked again about the party programs. What were they? He said the programs were about going along with them, serving food. Asked again what the programs were, he said giving out speeches and statements.
The Tribunal asked whether the applicant made speeches. He said he did not.
The Tribunal then asked why his membership of the SAD had not been raised by him before – either in his claims, before the delegate or when the Tribunal asked whether he had additional claims. The applicant said he didn’t have the letter. The Tribunal suggested that he didn’t need the letter to make the claim. He didn’t have anything on the SSF, but he still made that claim. The applicant said nothing. The Tribunal stated that it was a concern that this was only being raised now, and it was a concern that the applicant seemed to know very little about what was in the letter.
The Tribunal reminded the applicant about the discussion they had had during the preliminaries at the beginning of the hearing. From time to time, the Tribunal would need to discuss information with the applicant from the delegate’s decision that it considered inconsistent with the responses of the applicant during the hearing. Such information is considered relevant to this hearing as it may tend to question the accuracy or the genuineness of the applicant’s evidence and claims which may lead the Tribunal to affirm the decision under review. The Tribunal noted that the applicant had not provided the Tribunal with a copy of the delegate’s decision and noted that it would therefore invite the applicant to comment on information contained in the delegate’s decision under s.424AA a number of times.
The Tribunal asked the applicant whether he had experienced any threats or acts of harm in India. The applicant replied that there were threats that people would kill him. The Tribunal asked which people. The applicant said the police.
The Tribunal discussed pursuant to s.424AA the responses the applicant had given to the delegate. He had told the delegate that they had "knocked on his door". When asked for further information, he claimed he was beaten and "they would say things such as we will kill you". He was asked when this occurred, to which he responded he was not sure, he could not remember, and upon further questioning he stated it was early last year.
He was asked who he fears persecution from, to which he responded "from those people". He was asked what makes him fearful of these people, he responded "because they are against the Sikhs', they don't think we are good people, they will beat us and kill us". He could not explain who these people were, but claimed it was not the authorities who he was referring to.

The Tribunal asked the applicant why it was that he was now saying it was the police who threatened him yet he had told the delegate it was not the police. The applicant replied that it was both – people who are against the Sikhs and the police. The Tribunal asked why he hadn’t said that to the delegate. He said he didn’t think of it at that time.
The Tribunal reminded the applicant that he had told the delegate that he couldn’t return to India as people don’t like Sikhs, they are against them, and he will be beaten and killed. The Tribunal asked him who these people were and how many people there were. He said they are people who are against the Sikhs. He said lots of people are against the Sikhs. He said there are lots of Sikhs in jail. And that is why they want a separate sate of Khalistan. The Tribunal asked him again how many people he was threatened by – how many wanted to kill him. He said he doesn’t know. He has been in Australia for two years – a lot of them.
Pursuant to s.424AA, the Tribunal reminded him of what he had told the delegate. He was asked how many people he was referring to, he responded three or four people, yet he does not know them. Asked again by the Tribunal to explain the inconsistency, he said that there would now be lots of people, as lots more people would have joined them.
The applicant was asked how he became involved with the "All India Sikh Student Federation". He replied that other Sikh students were involved. The Tribunal asked why he got involved. He said it was because he was a Sikh and the SSF helps Sikhs stay involved.
Pursuant to s.424AA, the Tribunal reminded the applicant that he had told the delegate that his father was involved. When asked about his role specifically, he became confused, and then stated neither he nor his father were involved in the organization. He claimed he knew nothing about this organisation. When asked about this inconsistency, the applicant said that he wouldn’t say his father wasn’t involved, just not as involved as the applicant.
Pursuant to s.424AA, the Tribunal again noted that it was put to the applicant by the delegate that his written statement details his involvement with the "All India Sikh Student Federation", to which he responded "fertilization?" He was then asked if he knew the contents of his written statement, to which he claimed he did. The applicant was again asked about his role in the "All India Sikh Student Federation", to which he responded that he did not know what this organisation is and he had never heard of it. Again asked to explain the different answers given to the delegate and the Tribunal, the applicant said he was confused. Asked why he was confused, he said it was his first time in an interview.
The Tribunal asked the applicant about the incident at the farm house. The applicant said fifteen of them went to a farm house and then they found out it was surrounded by police and they ran away. The Tribunal asked what the meeting was about. The applicant said they were just all SSF people. The Tribunal reminded the applicant that his claim said the meeting was confidential. The Tribunal asked again what it was about. He said it was just about people who were against the SSF. He said it was a short meeting because the police came. He said six people got caught and the rest got away. The applicant was asked where he went to. He said he just ran away.
The Tribunal asked the applicant about the arrest [in] January 2016. It asked him why he was arrested. He said he was arrested for investigation. The Tribunal asked what he was being investigated about. He said because he is a Sikh and wants a separate state. The Tribunal asked the applicant what happened when he was arrested. He said the police came. The Tribunal asked where was he at the time. He said he was at home. The police took him from there to the police station. He was there for six hours. Asked what happened while he was at the police station, he said he was investigated. The Tribunal asked what sort of questions he was asked. He said they asked why he was involved with the SSF, why do this, why seek a separate state. The Tribunal asked why this took six hours to ask those questions. The Tribunal asked whether anything else happened. He said no, he was just questioned and then released. The Tribunal asked whether he was required to report back to the police again, or told where he could or couldn’t go. He said no, he was just released.
The Tribunal asked the applicant whether the police just turned up to his home – was he surprised by them turning up. Did he have any suspicions that the police might come to him? He said he had no suspicions, it was a total surprise.
Pursuant to s.424AA, the Tribunal told the applicant how he had replied to a question from the delegate when asked to elaborate on the incident [in] January, 2016 whereby he was arrested. He appeared confused with the question and after being asked again, he was unable to articulate his written claim of being followed by security agencies. The Tribunal asked whether he was followed by security agencies and how he knew he was being followed. He said he was, but he was still surprised by the police turning up. The Tribunal suggested that if he knew he was being followed by security or the authorities, then he wouldn’t be surprised when the police knocked on his door. The applicant said he was still surprised.
Pursuant to s.424AA, the Tribunal told the applicant how he had replied to a question from the delegate about his being tortured. He was asked to provide detail regarding his written claim that he was tortured, to which he responded "yes". When asked if he would like to provide any further information about this, he replied "no". He was asked what else happened during the six hours he was arrested by police. He claimed they only asked him questions and then he was released. It was put to the applicant that his written statement claims he was tortured during these six hours. He then responded "yes they did torture me as well", however did not elaborate any further. The Tribunal asked the applicant again whether he was tortured, given that he had already told the Tribunal that he was only questioned when he was at the police station. The applicant said he was tortured. The Tribunal asked him to elaborate on what torture was used upon him. He said the police would disturb him.
The Tribunal confirmed with the applicant that he was at home at the time he was arrested. He said he was. Pursuant to s.424AA, the Tribunal told the applicant how he had replied to a question from the delegate about where he was when he was arrested. He was asked if his parents were home when he was arrested, to which he responded no. He was asked where he was arrested, he claimed "not from home". Again he was asked where he was when he was arrested, he responded that he "can't remember". It was put to the applicant that his written statement claimed he was home at the time of his arrest. He then replied that he was home. When asked to explain the various answers he had provided, he said he was nervous at the interview and couldn’t say anything. The Tribunal responded that he had actually said quite a bit, it is just that it was inconsistent.
Pursuant to s.424AA, the Tribunal told the applicant how he had replied to a question from the delegate about what strict conditions had been imposed upon his release. He was asked what conditions were imposed with his release, to which he responded "no". When asked again, he said "what do you mean?". It was put to him that his written statement claims he was released on strict conditions. He replied that he was released with strict conditions, then stated there were no conditions. The Tribunal asked again what conditions were imposed on his release from the police. He said there were no conditions.
The Tribunal noted his claim about distributing leaflets. The Tribunal asked what was on the leaflets. He stated they said that Sikhs should be saved. Pursuant to s.424AA, the Tribunal told the applicant how he had replied to a question from the delegate about the leaflets he distributed. The applicant asked "what leaflets?" A relevant section of the written statement was then read out to the applicant. He then claimed he distributed leaflets and the information in the leaflets was "to save us". When asked if he could provide any more information about these leaflets he responded "no". The Tribunal asked why he had said that to the delegate. He replied again that he was quite nervous.
The Tribunal then stated it would like to ask him some general questions about his claims.
The Tribunal asked the applicant where it was proposed that Khalistan would be. He said he didn’t know. The Tribunal suggested that if he was demanding a separate state, he should know where it would be. What if he didn’t want to live there? He said he didn’t know, but could be in the north of India. The Tribunal suggested it might be in Punjab. He said he doesn’t know if it will be in Punjab.
The Tribunal asked the applicant how old he was when he starting following the SSF. He thought for a moment and replied that he was [age]. The Tribunal noted that his claims said he became affiliated when he was completing his school certificate, which was in 2016, when he was [age] years of age. The applicant said he was [age].
The Tribunal noted the applicant’s claim that he was outspoken about the atrocities committed against Sikh’s. His earlier evidence was that he had never made speeches. His evidence to the delegate was that he was never actively involved with the SSF. The Tribunal asked how he was outspoken. The applicant replied that they all spoke out together.
The Tribunal noted that whilst his father restricted his movements, he still arranged mini-meetings of the area youth. The Tribunal asked what were mini-meetings. He said they were small meetings and often nothing was even said at the meetings.
The Tribunal noted the applicant’s claim that his father made payments to delete his name from a list to depart Australia. The Tribunal asked to whom the payments were made, and what list was he on. The applicant replied that his father paid the police. The Tribunal asked what the list was. The applicant said it was a list of Sikhs who spoke out for Sikhs. The Tribunal confirmed it was nothing to do with him being a criminal – just a list of people who spoke out for Sikhs. He agreed.
The Tribunal asked the applicant whether he had engaged in any pro-Sikh activities in Australia, such as rallies. He said he had not – he had just attended temple.
The Tribunal discussed the issue of the treatment of Sikh’s in India. It discussed with the applicant a summary of the country information from the DFAT Thematic Report on Punjab referred to below.
Sikhism is a monotheistic religion founded in the Punjab region 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). Practising Sikhs are physically identifiable due to a number of distinguishing features, including the requirement to wear the five kakaars (also known as the 5 Ks): Kesh (uncut hair); Kangha (a wooden comb); Kara (a metal bracelet); Kachera (loose-fitting cotton undergarments); and Kirpan (a dagger or sword with a curved blade). The 5 Ks are considered articles of faith by both men and women. In practice, many Sikh men and women trim or shave their hair or dispense with one or all 5 Ks in daily life. Men often wear a dastaar or turban to cover their hair; Sikh women wearing turbans is less common, but some do cover their hair.
Some in the Sikh community continue to resent the perceived lack of accountability for the confrontation at the Golden Temple in 1984 and the subsequent period of separatist militancy, as well as the lack of prosecutions for those responsible for killing Sikhs in the wake of Indira Gandhi’s assassination. This underlying tension manifests itself in strong public advocacy for greater accountability for these events, both in Punjab and in the expatriate Sikh community in western countries, but rarely if ever translates to organised violence. A small number of Sikhs continue to advocate for a sovereign Sikh state of Khalistan. Police claim to have thwarted a planned attack on the New Delhi Commonwealth Games in 2010 by a pro-Khalistan group. However, such incidents are very rare, and multiple credible sources told DFAT that there is no appetite amongst the Sikh community in Punjab for a separatist movement or a return to militancy, which had significant impacts on the Punjabi economy.
The applicant agreed that people were killed at the Golden Temple and that some people want a separate state.
Many Sikhs have held high office in India, and particularly in Punjab. The Sikh-based Shiromani Akali Dal political party is currently the senior coalition partner in government in Punjab. The Chief Minister, Parkash Singh Badal, is Sikh (as is his son, the Deputy Chief Minister) and is currently serving his fifth term as Punjab’s Chief Minister. Former Prime Minister Manmohan Singh is a Sikh, and several Sikhs have held high positions in the central government. Sikhs have long enjoyed a disproportionately high representation in the Indian Armed Forces, although only two Sikhs have held the powerful position of Chief of Army Staff.
DFAT assesses that Sikhs in Punjab have no higher risk of religious-based official or societal discrimination or violence than that faced by people from other religious groups.
Further, aside from random incidents of crime which are prevalent in every country, "...the overall security situation in the Punjab is generally calm”.
The Immigration and Refugee Board of Canada (IRBC) states that "the present situation in Punjab is generally regarded as peaceful" and that "the human rights situation for Sikhs in Punjab and India has improved to the extent that it can no longer be said that there is a general risk of ill-treatment on return solely on the basis of believing in the establishment of Khalistan".[1]
[1] " "India: Treatment of Sikhs in Punjab (2013-April 2015)", Canadian IRB: Immigration and Refugee Board of Canada, 12 May, 2015
The Tribunal sought the applicant’s view to the information that the state of Punjab is generally calm and safe for Sikhs to reside in, and to return to. The applicant replied that when the separate Khalistan state is declared, he will be happy to go back.
The Tribunal discussed with the applicant a summary of the country information referred to below.
State protection
The DFAT states that In general, police in India have broad powers of arrest, including arrest without a warrant where they have a ‘reasonable suspicion’ of a connection to criminal offenses. To report a crime, citizens may lodge a First Information Report (FIR) at a police station. The Supreme Court has recognised the difficulty faced by some victims of crime in having an FIR registered, and has directed that the registration of FIRs should be mandatory for cognisable offences – those serious crimes for which police do not require a warrant to arrest a suspect.
DFAT also states that according to a 2009 report by Human Rights Watch and other sources, the capacity of India’s police forces is limited by poor infrastructure, insufficient personnel, inadequate training, poor living conditions for low-ranking officers, insufficient remuneration and a lack of training and equipment to conduct their duties. India also has relatively few police officers per capita – 129 per 100,000 people, compared to a global average of 350. Only around five per cent of Indian police officers are female, while only six per cent of Indian police officers are Muslim (despite Muslims comprising 13.4 per cent of the population).
In 2012, the US Department of State (USDOS) noted that “[w]idespread impunity at all levels of government remained a serious problem. Investigations into individual cases and legal punishment for perpetrators occurred, but in many cases a lack of accountability due to weak law enforcement, a lack of trained police, and an overburdened court system created an atmosphere of impunity”.
The Tribunal discussed the issue of relocation within India. Could the applicant relocate to Mumbai – a large capital city where he could live in anonymity?
Relocation
The DFAT states that Sections 19(1)(d) and (e) of the Constitution guarantee citizens the right to move freely throughout the territory of India and the right to reside and settle in any part of the territory of India, subject to reasonable restrictions in the interests of the sovereignty and integrity of India and the security of the State. The condition of ‘reasonable restrictions’ is left to the interpretation of government and courts. It gives room for laws and regulations that can restrict movement (for example, in places where there is unrest or in some border areas) and residence (outsiders cannot buy land in Jammu and Kashmir or in Uttarakhand). DFAT also states that there is a very high rate of internal mobility within India. Migration data from the 2011 Census has been collected, but not yet released. The 2001 Census stated that there were around 307 million internal migrants in India, defining as a migrant anyone who lived in a place different to their place of birth or place of last residence. This figure represents approximately 30 per cent of India’s total population.[2] Only a very small number of internal migrants – 0.5 per cent – reported in the 2001 Census that their reason for migrating within India was because of a ‘social or political problem’. This definition includes those who moved due to riots, terrorism, political problems or the prevailing law and order situation. However, this still implies that as of 2001, more than 1.5 million people had relocated to escape social or political problems.
[2] Department of Foreign Affairs and Trade, DFAT Country Information Report – India, 15 July 2015, p. 21.
USDOS states that Indian law provides for freedom of movement within the country, and the government generally respects this in practice.[3] The UK Home Office reported that background checks by the Indian police are not conducted where Indian nationals relocate within India, as the authorities have neither the resources nor the language abilities to monitor internal relocation. While there is not currently a national registration system for Indian citizens, several proposals and versions of identity card are being used in various states for various purposes.[4]
[3] US Department of State 2013, Country Reports on Human Rights Practices for 2012 – India, 19 April, Section II
[4] UK Home Office 2010, Country of Origin Information Report, 21 September, p. 95.
The IRBC corresponded with an official at the Canadian High Commission in India, who said that “police share information about ‘law enforcement’ but indicated that ‘there is limited sharing of information between police forces’ and police are not required to ‘report the movements of persons of interest to other offices’”.[5] In relation to tracing a person through registration, India reportedly does not have central registries for housing, rentals, schools, etc. If a person wishes to transfer voter registration to another location, however, the elections committee requires proof of address.[6]
[5] Immigration and Refugee Board of Canada 2012, India: Communication between police offices across the country; whether police across India can locate an individual, particularly as a result of registration requirements for employment, housing and education, security checks, and technological surveillance, IND104065.E, 14 May Accessed November 2016.
[6] Immigration and Refugee Board of Canada 2012, India: Communication between police offices across the country; whether police across India can locate an individual, particularly as a result of registration requirements for employment, housing and education, security checks, and technological surveillance, IND104065.E, 14 Accessed November 2016

The previously mentioned official from the Canadian High Commission in India indicated to the IRBC that as there is no central police database and records are kept in local police stations in India, “this makes it ‘extremely difficult, if not impossible’ to locate an individual as a result of a security check, unless there is a match between a local police station and the subject of a security check”.[7] It was reported in April 2011 that an applicant was not required to go to the police station to obtain identity documents such as a driver’s licences, voter cards, or ration cards.[8] The IRBC also reported on 10 May 2016 that according to information posted on the website of the Kerala Police Department, police stations across India are "virtually unconnected islands in the case of Crime & Criminal Tracking. There is no system of effective data storage … sharing and accessing data," and there is "no single system" by which a police unit can "talk to another directly".[9]
[7] Immigration and Refugee Board of Canada 2012, India: Communication between police offices across the country; whether police across India can locate an individual, particularly as a result of registration requirements for employment, housing and education, security checks, and technological surveillance, IND104065.E, 14 May Accessed November 2016.
[8] Immigration and Refugee Board of Canada 2011, India: Identity documents required to obtain employment and housing in Delhi, Mumbai and Chandigarh; whether individuals must present themselves apt police stations to obtain identity documents; issuance procedures for ration cards, birth certificates, driver’s licenses, and voter cards, IND103725.E, 27 April - Accessed November 2016
[9] Immigration and Refugee Board of Canada 2016, India: Communication between police offices across the country, including the use of POLNET; whether police across India can locate an individual, particularly as a result of registration requirements for employment, housing and education, security checks, and surveillance technology, 10 May 2016, - Accessed November 2016.
DFAT also states that it is not aware of any credible reports of mistreatment of returnees by Indian authorities, including failed asylum seekers. India does not have a centralised registration system in place which would enable the police to check the whereabouts of inhabitants in their own state, let alone in any of the other states or union territories within the country. A February 2015 report by the UK Home Office said that the possibility of the police, or any person or body being able to locate, at the behest of an individual’s family, a person who had fled to another state or territory in India, was remote.[10]
[10] Department of Foreign Affairs and Trade, DFAT Country Information Report – India, 15 July 2015, p. 22.
India has some 1.2 billion people in some 53 million urban agglomerations in India, and the largest 8 cities have between 4 and 12 million people each.[11]
[11] >
While Hindi is the official language of the central government in India, with English as a provisional official sub-language, individual state legislatures can adopt any regional language as the official language of that state. In effect, there are "Official Languages” at the state and central levels but there is no one "national language." Article 346 of the Indian Constitution recognizes Hindi in Devanāgarī script as the official language of central government India. The Constitution also allows for the continuation of use of the English language for official purposes. Article 345 provides constitutional recognition as "Official languages" of the union to any language adopted by a state legislature as the official language of that state.[12] The Constitution of India now recognizes 23 languages, spoken in different parts the country. English is widespread in business circles and as a second language. Article 348 of the Constitution provides that all proceedings of the Supreme Court and High Courts, as well as bills and acts of Parliament, must be in English.[13]
[12] UK Home Office, Country of Origin Information Report – India, p. 10. Accessed November 2016.
The UK Home Office also outlined that according to the 2001 census, Hindus constitute 80.5 per cent of the population, Muslims 13.4 per cent, Christians 2.3 per cent, and Sikhs 1.9 per cent.[14]
[14] UK Home Office, Country of Origin Information Report – India, p. 90. Accessed November 2016.
The Times of India reported on 23 June 2013 that the overall Indian unemployment rate was 3%.[15] In April 2013, the World Bank issued a report in which it expected economic growth in India to accelerate to 6.7% in 2015, and concluded that long-term prospects remain bright.[16] A Trading Economics Report expects India’s unemployment rate to be 4.8% in December 2016 trending to 4.6% in 2020.[17]
[15] Accessed November 2016.
[16] Accessed 2016
[17] >
In practice, options for internal relocation can be limited by a range of factors. These include language barriers; a lack of documentation; lack of familial or community networks; lack of financial resources and employment opportunities; and discrimination based on ethnicity, religion, caste or gender.
Language barriers can be among the most significant obstacles faced by those seeking to relocate within India. There are therefore more internal relocation options for India’s sizable bilingual and multi-lingual population. According to the 2001 census, around 25 per cent of the population reported being able to speak more than one language and around nine per cent more than two languages.
Without proof of identity and local residence, internal migrants can be excluded from public services and social security programs. As a result, they often face barriers in accessing subsidised food, housing and banking services until they can establish identity and local residence. Ethnic, religious or caste identity may provide a basis of anti-migrant sentiment and a limiting factor for internal relocation. Single women, women with children or victims of familial crime may find relocating within India difficult due to the need to provide details of their husband’s or father’s name in order to access government services and accommodation.
Despite these difficulties, millions of Indians successfully relocate within India either temporarily or permanently every year, and it is possible to obtain work in the large informal sector without papers. In general, DFAT assesses that there are a range of viable internal relocation options for individuals seeking protection from discrimination or violence.
The Tribunal noted that the applicant was a skilled man who had secured employment in Australia despite language barriers, spoke Punjabi and appeared to understand a little English. He was able-bodied. The Tribunal pointed out that country information suggested it would be a remote possibility of the police or government authorities or even his family finding him if he was in a big city. It restated country information that said that the possibility of the police, or any person or body being able to locate, at the behest of an individual or individual’s family, a person who had fled to another state or territory in India, was remote. If he had concerns about returning to Punjab, he could effectively disappear in another part of India.
The Tribunal asked whether the applicant would like to comment on that information that he could probably relocate within India, given that he has proven to be resilient in moving to Australia as a very young man knowing no-one else here, and that he had managed to secure a job and pay his taxes. The applicant replied that a temple got bombed in India. He said it is expensive to live in India. He added further that he couldn’t relocate elsewhere in India as he was comfortable in Punjab.
The Tribunal restated its concerns. It was concerned about the veracity and credibility of the applicant’s claims. He had given a lot of inconsistent information to the delegate and the Tribunal and much of the evidence provided was either very vague or inconsistent with his claims. The Tribunal noted that his claims appeared to be inconsistent with the country information it had discussed with the applicant, especially as regards the treatment of Sikhs in India and particularly Punjab, and also those Sikhs that support a separate state of Khalistan. The Tribunal also noted that it would seem that state protection was available to him, and if he wanted, it seemed that he had the capacity to relocate within India.
The applicant responded that he would like to stay in Australia until Khalistan is declared and then he would like to go back there.
Assessment of Claims and evidence, and findings:
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.
The Tribunal has its reservations about the veracity, credibility and plausibility of the applicant’s claims. The Tribunal accepts that the applicant wishes to stay in Australia to make a future for himself.
The Tribunal doubts the genuineness of his claims by virtue of the fact that it took the applicant nearly one year from the date of his actual marriage to his wife in which to make his protection claims.
The Tribunal has had regard to the comments of Heerey J. in the Federal Court matter of Velauther Selvadurai v MIEA and Anor [1994] FCA 1105, where at paragraph 11 of the decision His Honour states:
The applicant complained of the tribunal’s taking into account the fact that the applicant did not lodge his application for refugee status until some 20 months after he had arrived in Australia and just prior to the expiration of his visa. In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of the applicant’s alleged fear of persecution….”
A delay in seeking protection can support an adverse credibility finding as well as a finding that the applicant's fear is not well-founded: Zhang v RRT & Anor [1997] FCA 423; Kavun v MIMA [2000] FCA 370 and Subramaniam v MIMA (Carr J,10/3/98). In Subramaniam v MIMA (1998) VG310 of 1997, the Court held that even a three month delay in lodging a Protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant's fear of persecution. While a delay in making a Protection visa application by itself is not conclusive it reasonably remains an indication in the applicant's case that the claimed fear of harm in this regard is not genuine.
Notwithstanding that the applicant clamed not to know about protection visas, he was able to obtain a [temporary] visa to Australia from India and he maintained that he came to Australia expressly for the purpose of seeking protection, the fact that he did not apply for protection until the day before his [temporary] visa was due to expire causes the Tribunal to doubt the genuineness of his claims. As will be established below, the Tribunal suspects that the applicant applied for a protection visa because he had no other visa options and that his claims have been fabricated to satisfy protection visa criteria.
The applicant appeared evasive in answering questions in that he invariably answered with a yes/no response. When pressed for more information, he tried to stick to a message that he was with the SSF or the SAD because they supported Sikhs and they wanted a separate state.
The applicant introduced a new claim that he was a member of the Shiroani Akali Dal and produced a copy of a purported letter from its Office Secretary that stated in order for him to avoid future problems he has left India. The letter is written on the basis that the writer was informed by members of the applicant’s family of his concerns. The letter is a poor reproduction, it has a letterhead on each of its three pages, the Tribunal has not seen the original, but of more grave concern to the Tribunal is that the applicant appeared to have no knowledge of what the letter said or the claims that it made, especially as to him being a member of the SAD. It was clear to the Tribunal that the applicant didn’t know what the SAD was. The Tribunal gave this letter no weight.
The applicant also presented a purported article about the imprisonment of one Canadian Sikh in India. The article was not a newspaper or media report, rather a statement from the Sikh Federation in the UK. It was unsourced, it was a poor copy with the top and bottom of each page cut off. The Tribunal gave this document no weight.
The applicant also produced two pages without title or reference source. They spoke of a Sikh having been imprisoned for 225 days. Again, as they were unsourced and had no reference to an author, the Tribunal gave them no weight.
Another page, with a picture of two dead people on it was given no weight as it did not establish any connection between it and the applicant’s claims.
The Tribunal accepts that the applicant appears to have a view about atrocities committed against Sikhs in India in the past.
The Tribunal does not accept that the applicant became affiliated with the SSF. The date of his involvement is inconsistent as between his written statement (when he was completing his [education], when he was [age]) and his evidence (when he was [age]). If the Tribunal was to give the letter from the SAD any weight, it would seem that he also became a member of the SAD when he was [age]. The Tribunal was not persuaded by the applicant’s understanding of what the SSF stood for, or what it did, his responses to requests for detail being very vague. The inconsistency between the evidence given to the delegate (that he and his father were not involved, that he didn’t know of this organization at all) and Tribunal (he was “with” them because they helped Sikhs be involved) could not be explained.
The Tribunal does not accept that the applicant is motivated by the prospect of a separate state of Khalistan. When asked, the applicant had no idea of why a separate state was required, what any conflict was about or even where the state of Khalistan might be located.
The Tribunal does not accept that the applicant was outspoken about the atrocities against Sikhs. The Tribunal has already found that the applicant was not involved with any organization, either the SAD or the SSF. The applicant told the Tribunal he did not make any speeches. When pressed, he could not state what he actually said when he was being outspoken.
The Tribunal does not accept that the applicant was arrested. When pressed, the applicant said he was called in for investigation. When asked about the investigation, he replied that the police carried out an investigation. When asked what they were investigating, he replied Sikhs and the state of Khalistan. He could not explain how that took six hours.
The Tribunal does not accept that the applicant was tortured. When asked on a number of occasions what happened at the police station, he said he was questioned and then allowed to go. He gave a similar response to the delegate. He declined to give the delegate any detail at all about the torture. When pressed by the Tribunal, he said that the police disturbed him to ask questions. That does not amount to torture.
The Tribunal does not accept that the applicant attended the police station for the reasons stated, and as he stated he was tortured and released on strict conditions. After questioning by both delegate and this Tribunal, the applicant admitted that there were no conditions. The applicant simply could not provide any detail as to his experiences. The Tribunal considers this lack of detail in both his claims and his evidence at interview and hearing as further evidence of his poor credibility.
The Tribunal does not accept that the applicant organized any mini meetings. He could not explain how he organized and attended such meetings whilst being restricted by his father. And when queried on that, he said he only attended a few meetings and at most of the meetings, nothing was said. Again, the applicant was very light on detail about these meetings.
The Tribunal does not accept that the applicant attended any meeting in February 2016. Despite it being confidential, he could not provide any detail as to what the meeting was about or why it was confidential. He could not provide detail as to where he escaped to, other than that he ran away. He could not explain what happened to the six who were allegedly arrested.
The Tribunal does not accept that the police were searching for him everywhere. On the basis of the findings to date, the police had no reason to search for him. Further, when asked whether he had any suspicions that he might be taken to the police station, he said he was totally surprised. It is implausible that he could be so totally surprised if he believed he was being followed.

The Tribunal does not accept that his father paid bribe money to have his name taken off a list. The list he referred to was a list of Sikhs who support the separate state. The applicant said it was not a police list of criminals.
The applicant was able to leave the country without any concerns or issues. He was not stopped at security or immigration. The Tribunal is satisfied that the applicant was not on any security list or had any outstanding arrest warrant.
The Tribunal does not accept that any new task force has been organized to combat any growing conflict. Such a claim contradicts country information that the general security situation in Punjab is calm. Further, the IRBC states that "the present situation in Punjab is generally regarded as peaceful" and that. "the human rights situation for Sikhs in Punjab and India has improved to the extent that it can no longer be said that there is a general risk of ill-treatment on return solely on the basis of believing in the establishment of Khalistan".
The Tribunal notes that the applicant has no police record. His evidence was that he was taken in for questioning and released. On his own evidence, he was arrested and therefore has no record.
The Tribunal rejects the applicant’s claims that he fears harm or death in their entirety.
For the sake of completeness, the Tribunal notes that country information indicates that India has an effective police and judiciary system which he could access if he had other concerns about his security. The country information also states that the security situation for Sikhs in Punjab is peaceful and that it is calm and safe for Sikhs to reside in, and return to.
The Tribunal is satisfied that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to India.
Further, given that the Tribunal has found that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real chance he will suffer serious harm it follows that the Tribunal is not satisfied, in accordance with s 5J(1)(c), that the real chance of persecution relates to all areas within India and therefore, the Tribunal is not satisfied that the applicant’s fear of persecution is well-founded.
Cumulative claims
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence, and country information, as well as having considered the personal circumstances of the applicant as contained in his application and as discussed in the hearing, the Tribunal finds that there is no real chance that the applicant will suffer persecution on the grounds of race, religion, nationality, membership of a particular social group or political opinion, or any other reason if he returns to India now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to India. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm
The Tribunal has considered the applicant’s claims under complementary protection.
In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to India now or in the reasonably foreseeable future.
The applicant’s claim to complementary protection is essentially the same claim he made in his application for protection. Those claims have failed because the Tribunal did not accept that the applicant has received any actual or implied threat of harm because he intended to marry someone out of his caste. The Tribunal did not accept that the belief of the applicant that he would be the subject of an honour killing is genuinely held.
The Tribunal is satisfied there is no real risk that the applicant will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflected on the applicant, such as to meet the definition of torture; or the definition of cruel or inhuman treatment or punishment; or the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk he will suffer arbitrary deprivation of his life or the death penalty. The Tribunal finds no grounds that suggest the applicant will be subject to significant harm for any reason if he returns to India. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.
Again, and only for the sake of completeness, the Tribunal also finds that if the applicant has other concerns about returning to Punjab, it would be reasonable for the applicant to relocate to another area of the country where he has no such concerns. Accordingly, the Tribunal finds that there are not 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.
Conclusion: Refugee Criterion
Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group). His fear of persecution is not well-founded as required by s.5J of the Act and therefore he is not a refugee within the meaning of s.5H.
Conclusion: Complementary Protection
Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that that are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to India that there is a real risk that he will suffer significant harm.
Overall conclusion:
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
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.
Michael Hawkins
Member

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

[2018] AATA 5931

3 July 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Natural Justice

Remedies