1708526 (Refugee)

1708526 (Refugee) [2023] AATA 4384 (3 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Ejaz Khan (MARN: 0213478)
CASE NUMBER:  1708526
COUNTRY OF REFERENCE:                   India
MEMBER:Gabrielle Cullen
DATE: 3 October 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 03 October 2023 at 1:22pm
CATCHWORDS
REFUGEE – protection visa – India – political opinion – member of Sikh political party and Khalistan separatist supporter – participation in meetings, rallies and demonstrations – harassed and beaten by local authorities and attacked by Hindu nationalists – arrested, tortured and accused of murder – father a senior and active member and brother granted protection in third country – continuing membership and financial support – one activity soon before tribunal hearing – undetailed knowledge of party’s history, policies and activities – delay in applying for protection – previous unsuccessful visa application, with tribunal review and court appeals – claim to have been victims of agent’s scam – country information – low risk of official or societal discrimination or harm to low-level members – members of family unit – no separate claims by wife and child – child now Australian citizen and application withdrawn – language, education and integration into community – referred for ministerial consideration – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (5), (6), 36(2)(a), (aa), (2A), 65, 417, 424AA
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 31 March 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants, who claim to be citizens of India, applied for the visas on 8 August 2016.
The first named applicant (the applicant), who is a citizen of India, claims to fear return because he will be harmed or killed as he is a follower and member of Shiromani Akali Dal - Amritsar (SAD (Amritsar)[1]) and a Khalistan supporter and activist. He claims to have been harassed and beaten by local authorities as well as to have almost been killed in an attack by individuals connected to the Rashtriya Swayamsevak Sangh (RSS) and the Anti-Khalistan movement before he departed for Australia in 2009, and when he returned in 2011. He claims that similar persecution has been experienced by other supporters of SAD (Amritsar), including his family members. He claims his father was arrested and jailed for two years, and his brother was also “targeted” and fled to [Country 1] on this basis, where he has claimed protection and has now become a [Country 1] citizen. He claims his sister married and moved to [Country 2].
[1] Also known as SAD – Mann after its leader Simranjit Singh Mann
The second named applicant, a citizen of India, is the spouse of the applicant. While she submitted a Part C form, no claims were made in the application and at hearing it was confirmed she was not making any claims in her own right.
The child of the applicant and the second named applicant, born in Australia on [Date], applied to the Tribunal but has since become an Australian citizen. Her application for the visa was withdrawn on 19 May 2023 and this was accepted by the Tribunal on 20 July 2023.
The applicants arrived in Australia [in] April 2009 on Student visas valid to 13 May 2011, with the second named applicant as the primary applicant. They both departed Australia [in] January 2011 and returned [in] March 2011. On 27 April 2011 they applied for Skilled (Subclass 485) visas, which were refused by the delegate as the now second named applicant did not meet the requirements of PIC 4020. In this case, the delegate found that a skills assessment was a bogus document. The applicants applied to the Tribunal, and on 25 September 2012 the Tribunal found it did not have jurisdiction. They then applied to the Federal Circuit Court for judicial review and on 12 April 2013, the Court quashed the decision and remitted the application to the Tribunal for redetermination. On 1 November 2013 the Tribunal affirmed the decision of the Department. The applicants applied for judicial review, and on 21 April 2015 the Federal Circuit Court dismissed the appeal, as did the Federal Court (on 22 January 2016) and the High Court (on 14 February 2016).[2]
[2] As outlined in the Department decision submitted with the Application for Review as advised by the applicant at hearing when asked as to the reasons for the delay in applying for a protection visa
On 28 October 2016 the applicant was interviewed by the Department in relation to the application for protection. The second named applicant did not attend the interview. The Tribunal has listened to the tape of that interview and, where relevant, the evidence from that interview appears in this decision.
The delegate refused to grant the visas on 31 March 2017 on the basis that she did not find credible the applicant’s claims that he cannot return to India as he will be killed for being a member of SAD (Amritsar). The delegate accepted that the applicant was a member of SAD (Amritsar) in India from the age of 21. The delegate was further satisfied that the applicant continued to be a member of SAD (Amritsar) whilst in Australia, maintaining an interest in the party’s news and members. The delegate found that the applicant had not provided evidence to substantiate the claims that the attacks against him whilst in India were politically motivated. The delegate also found that no evidence for the arrest or accusation of murder was provided. The delegate specifically addressed the 13-page letter from SAD (Amritsar) provided in support of the applicant’s claim. The delegate accepted it as confirmatory evidence of the applicant’s membership of SAD (Amritsar) but did not place any weight on its claims given the “very broad and general statements regarding the applicant’s specific history with the party”. The delegate found that the applicant had not been a victim of political attacks in India and would not be in the future, if returned. The delegate was satisfied that the applicant’s fear of persecution was not substantial due to the period of time that elapsed between the applicant’s arrival in Australia and the time he claimed refugee status. The delegate did not accept that the applicant could not relocate in India because he was not well-educated. The delegate noted that the applicant is [an Occupation 1], which is a job which can be undertaken in India without restriction. Furthermore, the delegate found he was able to successfully live and work in Australia, which is a foreign country. The delegate found that the applicant did not face a ‘real chance’ of persecution and that there is not a real risk he will suffer significant harm if returned to India.
The applicants applied for review of the Department decision on 19 April 2017 and attached the decision of the Department.
The applicant appeared before the Tribunal on 17 April 2023 to give evidence and present arguments. The second named applicant attended the hearing but chose not to give evidence. The applicant’s representative attended the hearing. The applicant was assisted by an interpreter in the Punjabi and English languages via telephone. On the day of the hearing the interpreter did not appear in person as requested but via telephone. The applicant’s representative advised that they would like to proceed. The applicant chose to speak in English and was advised to use the interpreter if he did not understand something or wished to talk in his language. For most of the first hearing the applicant chose to speak in English but towards the end of the hearing, when he was being asked questions as to the polices of SAD (Amritsar) other than Khalistan, it became apparent that the applicant was having difficulty using the interpreter at times, and the hearing was adjourned to 17 May 2023, when an interpreter could be present in person.
The applicant appeared before the Tribunal again on 17 May 2023 to give evidence and present arguments. The second named applicant did not give evidence but attended the hearing. The applicant’s representative attended the hearing. The applicant was assisted by an interpreter in the Punjabi and English languages who attended in person. The applicant chose to speak in English and was advised to use the interpreter if he did not understand something or wished to talk in his language, which he did at times.
The issues considered in this case are as follows:
·Is the applicant credible as to his claims?
·Does the applicant have a well-founded fear of persecution in relation to India and meet the refugee protection provisions of the Act?
·Does the applicant meet the protection obligations under the complementary protection provisions of the Act?
·Will the Tribunal refer the matter to the Minister for intervention?
CRITERIA FOR A PROTECTION VISA
The relevant criteria for a protection visa are outlined in the attachment to this decision.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has before it the Department’s file relating to the applicants. The Tribunal also has had regard to the material referred to in the delegate’s decision and other material available to it from a range of sources. This includes, but is not limited to, the following:
·The applicants’ protection visa applications dated 8 August 2016, identity documents and a marriage certificate dated [Date].
·The applicant’s statement outlining his claims for protection submitted with his application.
·Oral evidence of the applicant provided at the Department interview on 28 October 2016 and the Tribunal hearings held on 17 April 2023 and 17 May 2023.
·A copy of a Wikipedia entry regarding Indian human rights activist Jaswant Singh Khalra.
·Letter from the youth party of SAD (Amritsar) citing Simranjit Singh Mann as President, dated 26 December 2015, certifying the applicant’s membership since [April] 2007, advising he attended meetings, rallies and demonstrations with them and setting out the nature of his involvement with the party. It also outlines the persecution and discrimination experienced by members of SAD (Amritsar) and the Sikh community in India generally.
·Copy of the applicant’s SAD (Amritsar) membership card showing he joined the party in April 2007.
·Medical certificate issued by [Hospital 1] on 5 May 2016 noting the applicant was treated by the hospital [in] February 2011 as he was suffering from multiple external and internal injuries, lacerations, contusions and abrasions to the face, abdomen, buttocks and to the anterior part of the abdomen and chest. He was treated for six days.
·Medical certificate issued by [Hospital 2] on 22 July 2016 noting the applicant was treated by the hospital [in] December 2008 for multiple injuries to his face and body, and that he was treated and observed for four days.
·General country information as to SAD (Amritsar) from 2003 to 2005:
o   General letter to The Bar Council of Paris from the President of SAD (Amritsar) dated 20 June 2003.
o   Newspaper article from ‘The Tribune’ titled “Amnesty: end custodial violence in Punjab” dated 20 January 2003.
o   Newspaper article from ‘The Times of India’ titled “Government shuts door on Amnesty chief” dated 25 July 2003.
o   Press statement from the President of SAD (Amritsar) dated 25 July 2003.
o   Newspaper article from ‘The Times of India’ titled “India not disclosing death penalty figures: Amnesty” dated 13 October 2007.
o   Memorandum to the then Home Minister of India, Mr Shivraj Patil, regarding the law and order situation in the Punjab, presented by SAD (Amritsar) on 15 January 2005.
o   Newspaper article from ‘Hindustan Times’ titled “8 Punjab DGPs, courtesy Virk” dated 14 January 2005.
o   Newspaper article from ‘Tribune News Service’ titled “Congress in election mode as CM bashes Akalis” dated 14 January 2005.
o   Document titled ‘List of cases registered against Simranjit Singh Mann’.
o   Newspaper article from ‘The Tribune’ titled “Punjab police to help indicted officials: DGP” dated 23 November 2005.
o   Newspaper article from ‘The Tribune’ titled “Killer Cops” dated 21 November 2005.
o   Newspaper article from ‘The Hindustan Times’ titled “He killed my son, how can Capt grant pardons?” and “How can my son’s killer be pardoned?” dated 2 December 2005.
o   Newspaper article from ‘Times News Network’ titled “U.S douses India’s Agni” dated 22 November 2005.
o   Newspaper article from ‘Hindustan Times’ titled “Police to support convicts” dated 23 November 2005.
·Other general information:
o   Newspaper article from ‘Hindustan Times’ titled “Shadow over the police”, date unreadable.
o   Newspaper article from ‘The Tribune’ titled “US Court finds 2 companies guilty: Sale of missile technology to India” dated 23 November 2005 (date unclear).
o   Newspaper article from ‘The Tribune’ titled “Indo US N-deal: Austria chills Indian hope” dated 17 March 2007.
o   Newspaper article from ‘Indian Express Chandigarh’ titled “US stopped Indian companies from exporting nuclear material to Syria” dated 6 September 2011.
·Statutory declaration by the applicant declared 25 November 2022.
·Submission from the applicant’s representative received 25 November 2022.
·Applicant’s brother’s [Country 1] passport.
·Applicant’s sister’s [Country 2] passport.
·Affidavit of [Mr A], the applicant’s father-in-law, dated 14 November 2022 submitting that the applicant was a party member of Simranjit Singh Mann, and as the police tortured him, he went to Australia, and if he returns to India, his life is in danger. He claims the police searched their house many times and asked them about the applicant and his whereabouts. He submits that if the applicant returns to India his life is in danger.
·Affidavit of [Mr B] dated 14 November 2022 claiming to know the applicant and stating that the applicant was a party member of Simranjit Singh Mann, which caused him to be tortured, and if he returns to India his life is in danger. He notes the police have searched his house and asked about him and his whereabouts and asked him to tell them if he returns to India. At hearing the applicant said this was his neighbour.
·Receipts pertaining to the applicant’s donations to SAD (Amritsar) from 2015 to 2021.
·Applicant transaction statement from 23 August 2022 to 18 November 2022.
·Applicant’s mother’s passports showing [Countries 1 and 2] visa labels.
·Applicant’s father’s passports showing [Countries 1 and 2] visa labels.
·Employment reference letter for the applicant dated 16 November 2022 stating that he is employed at [Employer 1], and is a hard worker and conscientious employee.
·Employment reference letter for the second named applicant dated 18 November 2022.
·Evidence the second named applicant obtained a Certificate III in [Subject] on 26 February 2010, a ‘Best student award 2010’ and a Diploma of [Subject specialisation] on 24 June 2011.
·The applicants’ child’s Australian citizenship certificate issued [in] June 2022, her 2022 NAPLAN report and her school report for Semester 1 2022.
·Photographs of the applicants’ child at school in Australian and playing with a ball.
·Photographs of a ballot question as to whether the Punjab should be an independent country and photos of the applicants involved in a Khalistan Movement vote in Melbourne on 29 January 2023 attending the Khalistan referendum in Australia.
·Receipt from [Hotel] Melbourne for the night of 28 January 2023, the night before the referendum was held in Melbourne.
·Submission of the applicant’s representative dated 15 May 2023.
·Department of Foreign Affairs and Trade (DFAT) Country Information Report India, 29 September 2023 and Department of Foreign Affairs and Trade (DFAT) Country Information Report India, 10 December 2020.
·Department of Immigration – PAM3 Refugee and Humanitarian – Complementary Protection Guidelines and PAM3 Refugee and Humanitarian – Refugee Law Guidelines.
For the reasons that follow, the Tribunal has concluded that the decision under review should be affirmed.
The applicant’s claims
The applicant claims in a statement attached to his protection visa application received on 8 August 2016 to fear return due to his involvement with SAD (Amritsar)[3]. He claims he joined the party [in] April 2007 and that he has been a strong and active supporter since. He believes that he will suffer serious physical harm or death if he returns to India due to his political affiliations and opinions. Specifically, he claims he was a volunteer of the party and spent time as a guard of the [Party official], and that he has been actively involved in the party by attending meetings, rallies, programs and demonstrations where he helped organise tents, food and drink. He claims to still be in touch with the party in India through his father who attends meetings sometimes when in India. He has also sent money to ‘the SAD’.
[3] The applicant refers to it as the SAD
The applicant claims to have faced problems as a result of his involvement with SAD (Amritsar) by being accused, in or around 2007, of murdering [Mr B], a member of the Akali Dal party in Amritsar. He claims that as a result, the police were after him and he then had to flee to Australia. He claims to also have been beaten to the point of hospitalisation by Indian police and members of the RSS in December 2008. He claims this occurred due to his and his family’s support of and work for SAD (Amritsar).
He claims that in 2011, when he went to visit his mother and father in India, who both continue to contribute to SAD (Amritsar) on a regular basis, he was attacked by a few unknown people and almost killed. He claims he was admitted to hospital and unable to return to Australia on the scheduled date, so he applied for an extension to stay until he was able to travel back to Australia. He claims he came to know later that the attack was carried out by RSS and the anti-Khalistan movement.
He claims his father and mother, who still live in India, continue to contribute to SAD (Amritsar) on a regular basis. He claims his brother was targeted by opposition member parties and left India due to a fear of persecution, and was accepted as a refugee in [Country 1]. He claims his sister fled to [Country 2] and married a boy who is a supporter of SAD (Amritsar).
He said ‘the SAD’ is seeking an independent state for Sikhs and that supporters of the party were targeted and killed by the Indian Government in 1984 in a police and paramilitary operation knows as the Blue Star operation. He claims many young Sikh men were arrested and jailed, and a few of them are still awaiting their fate. He claims that in 1995 his father’s close friend and party member, the late [Mr C], was kidnapped and later killed by police. He claims that in an attempt to eliminate the movement, his father was jailed for two years and since then his family has faced a hard time but has remained committed and are active supporters of the Khalistan movement.
He claims that the SAD (Amritsar) President, Simranjit Singh Mann, was persecuted by government agencies, and arrested and tortured by police. He claims that the President is unable to provide protection to him and his family.

He claims that he and his family were the victims of a migration agent scam and their visa was affected by PIC 4020 and refused. He claims their case was finalised on 17 June 2016.
At the Department interview held on 28 October 2016 the applicant repeated his claim to fear return, including for his life, due to his political opinion as a supporter of SAD (Amritsar). He said he cannot return as he was attacked by members of the RSS when he returned in 2011 and he had to extend his stay by two weeks due to the injuries sustained.
As to his family, he said his father owned a [business] and his father was a committee member of SAD (Amritsar). He said his brother travelled to [Country 1] in 2000 and his sister to [Country 2] in 2001 or 2002 due to marriage. He confirmed his brother travelled to [Country 1] in 2000 and obtained a protection visa as he was beaten by the RSS.
As to where he has lived in India, he said his last address was his home in [Location], [City], Hoshiarpur district[4] and he returned and lived there in 2011.
[4] The address outlined in his application for the visa where he indicates he resided from birth until April 2009
As to what happened in 2011, he said he was visiting a Sikh temple and when he came out, he was hit with the back of a stick, and he thought there were four or five people who attacked him. He said when the crowds gathered, the attackers ran off and his father made enquiries and was told the attackers were members of the RSS. As to why he did not report the attack to the police, he said the SAD (Badal) and SAD (Amritsar) are complete opposites and his father spent two years in jail in 1995 for no reason.
As to difficulties he has faced from the police in India, he said he has been taken twice. He said in or around 2008 he was taken from his district as a member of the SAD (Badal) government had died and the police picked up a lot of boys, including him, and beat them for a few days. He confirmed that was in 2008. He said charges were not laid as there was no proof, and he was let go.
As to what else happened to him in 2008, he said he was coming back from a volunteer meeting and he was on a bike with a friend; their bike was hit from behind and they fell off. His leg was under the motorbike, but his friend got away and ran for help as there were shops close by. The friend said the men that beat him had an RSS sticker and the applicant said the RSS want to get rid of the Sikhs.
As to what will happen on return, he said he has already been attacked two or three times, and his family is very scared, and he needs to think about the future of his child. He said he fears the RSS members on return.
He said that before he came to Australia, he worked in the [business] helping his Dad, who owned six [Vehicles].
As to why he did not apply for a protection visa sooner, he said he thought they would get permanent residency the other way on a skilled visa as his wife is very smart.
As to his involvement in SAD (Amritsar) since his arrival in Australia, he said he speaks to his father who sometimes attends meetings in India. He said he did not have contact with the party or do anything else except talk to his father, since his arrival in Australia. He also advised that he has sent about 250,000 to 3000,000 rupees in donations to SAD (Amritsar) in India since his arrival.
The applicant discussed the general difficulties faced by Sikhs in 2005, noting he was not personally involved and the delegate noted that the police ultimately became involved and the perpetrators faced the law.
As to whether he could relocate, he said he is not well-educated and the Department noted that he is [an Occupation 1] and questioned why he could not live elsewhere, and he said that they are killing Sikhs everywhere.
As to what he did for the party prior to his departure in 2009, he said he joined in 2007 and used to go with his father, and when there were rallies and volunteer meetings, he would help organise tents and get people from the area to attend, and organise food and drink. He said he had been doing this since he was a child with his father.
He initially said he became a committee member of SAD (Amritsar) on 13 April 2007 and then confirmed he was just a member from that date and had never been a committee member.
When asked if there were any claims that had not been discussed, he answered in the negative. He said he had not done anything in Australia that would make it difficult to return. He confirmed he had put forward all his claims for protection and did not have anything to add.
In a statutory declaration dated 25 November 2022 the applicant referred to the submission of his representative and noted that it has been read and explained to him and that it presents his claims for protection.
The applicant’s representative on 23 November 2022 in a written submission repeated claims made in the applicant’s statement attached to his application and claims made at the Department interview. He additionally submitted the following:
·The applicant’s brother left India for [Country 1] around the same as time as the applicant left for Australia and his brother has been granted a protection visa.
·The applicant remains a member of SAD (Amritsar), paying his membership fee and donating to the party.
·He also supports the Australian Sikh group who support a separate state for Sikhs. He supports the Sikh referendum conducted in many countries to raise awareness about the cause around the world.
·He is actively working with other community members to initiate a similar referendum in Australia.
The representative referred to the DFAT Country Information Report India dated 10 December 2020 as to the treatment and difficulties faced by religious minorities, noting Sikhs constitute 1.7% of India’s population, making them a religious minority. The information also notes that some RSS affiliates have engaged in militant activities since the Bharatiya Janata Party (BJP) came to power in 2014.
He submits the following as to the Department’s refusal decision:
·There is evidence that the applicant has continued to provide financial support to SAD (Amritsar), which is evidence of his continued membership.
·The applicant maintains his claims that the attacks were politically motivated; he rejects the Department claims that the injuries he sustained were not politically motivated.
·The applicant believes the attacks in 2008 and 2011 were conducted by members of the RSS, based on his own knowledge and what the witnesses of the attacks told him.
·As to the applicant not providing any evidence of his arrest or regarding the accusation of murder, he refers to the statements made by [Mr A], the applicant’s father-in-law, and [Mr B] of the danger he would encounter if he returned to India.
·The finding as to effective protection does not take into account the corruption in India’s judiciary, police and public service.
·It is unlikely First Information Reports were ever submitted by the hospitals as the health service is one of the most corrupt in India.
·The applicant and his family maintain he is unable to relocate to another part of India.
At the first Tribunal hearing held on 17 April 2023 the applicant said neither the second named applicant nor his daughter were making claims in their own right.
The Tribunal discussed with the applicant and his representative that as the applicants’ daughter, who was listed as the third named applicant, is now a citizen of Australia, she did not meet the requirements for a protection visa. The applicants’ representative said they would withdraw the application in relation to the applicants’ daughter, which they have. The applicants’ representative also noted that they would be requesting that the Tribunal ask for ministerial intervention. As to his daughter, the applicant said she was born in [Year], attends school in Australia, and speaks Punjabi but cannot write it. He said she would not cope returning to India as she cannot write in Punjabi or speak in Hindi and it would be very difficult for her.
The Tribunal discussed with the applicant the documents he had submitted. As to the photographs of his daughter and documents pertaining to her education, he said they were submitted with regard to the request for ministerial intervention to show that she is integrated into Australia. As to the photos of the applicant and the second named applicant in front of Khalistan banners, he said they travelled to Melbourne on 29 January 2023 and they went there to vote and to support the movement. He then provided a receipt showing that they stayed in [Hotel] in Melbourne the night before the day of the referendum. As to the employment letters, he said his wife had been working in [Employer 2] for six years and he had been working at [Employer 1] for nearly 10 years as [an Occupation 1]. As to why he submitted his [Bank] statement, he said it is to show that he has funds, noting he held approximately $78,000 in deposits, to buy a house. The Tribunal referred to the receipts that were untranslated; he said these are evidence of donations he had given to SAD (Amritsar) since 2015. Referring to the recently submitted affidavits, he said that [Mr B] is his neighbour.
He said he had lived at the same place from the time of his birth until he departed India for Australia in April 2009. He confirmed he travelled from this home to the airport to travel to Australia and that his parents continue to live in the same house, although he later said that about a week before the hearing they had travelled to [Country 1], and that they frequently visit his brother in [Country 1] and had visited Australia in 2016. He said they left last week because of the unrest in the Punjab as the police are picking up all Khalistan supporters.
He said he was married on [Date] and his wife moved into his home; they had no holiday, and he was attacked about a month or two months after the wedding.
He said he attained education to year 10 then left school in or around [Year] and helped his father in the [business]. He said he worked up to his departure for Australia in April 2009 and again confirmed he lived at home until his departure. He said that when he returned from [January] 2011 to [March] 2011 he lived at the same address at his home. He said he thought the situation would have changed and went back to check it out as he was not planning to live in Australia. He said his father and brother paid for his trip in 2009 and in 2011 he and his brother paid for his trip.
He said his brother went to [Country 1] in 2000 and his sister went to [Country 2] in 2001. He said neither of them have returned to India since then. When asked why he said at the Department interview he did not go back, not even to visit when his brother was married, he said he was referring to his brother-in-law.
The Tribunal asked what would happen if he returned and he said he would be beaten and killed. When asked why, he said because he is a Khalistan supporter and he referred to a friend who, through social media, let his support of Khalistan be known and was picked up by the police and sent to another state. He said he has not been on social media. He said his name is [Mr D] and he lives in Amritsar. He said his home is about two hours from Amritsar.
The Tribunal asked about his political involvement in Australia in addition to the Khalistan rally he attended in January 2023. He said he goes to his temple at [Suburb] and talks to his friends about what is going on in India. He said they talk about how to fund raise for lawyers as a thousand people who are pro-Khalistan supporters have been jailed and they have done no crime. As to what has happened recently to cause the police to arrest these people, he said it is because of Amritpal Singh asking for a Khalistan state. He said Amritpal Singh is the organiser of Waaris Punjabi and has been making calls on the state assembly to stop drug cartels, to be holy and not to be corrupt. The Tribunal asked whether he is detained and he said there are rumours he is and has been arrested but no one knows.
The Tribunal raised with him that at the Department interview he said he was not involved in politics in Australia, only speaks to his father and said no when asked whether he has anything to do with the party other than sending donations to India. The Tribunal raised as of concern that he became actively involved just prior to the hearing by attending a Khalistan referendum in January 2023 and has not been actively involved for 14 years since his arrival in 2009. He confirmed that his involvement in Australia from 2009 to 2023 was through sending money and talking with his father and others. The Tribunal asked what prompted him to go to Melbourne in January 2023 when he had not been active since 2009, when in India, and he said because it was the first time there was the opportunity to vote in Australia in a referendum on Khalistan. He said people came from all over Australia.
He said he is not a member of any other party or any other pro-Khalistan movement and only supports SAD (Amritsar). When asked if he knew of any other groups that support the pro-Khalistan agenda, he said he did not.
The Tribunal asked about his past involvement in SAD (Amritsar) and he said his father had a high level role and he would go with him when he was young to meetings. He said he, the applicant, was just a member and joined in April 2007. As to the role his father held, he said he was under the [Position 1] and when asked what that meant he said he was advisor to the [Position 1]. He said it is an official role and his father is still doing it; he is on the phone and talks to members but because of his age he can’t go to all the meetings. He said he did go to Amritsar for a meeting two months ago and had been a member for 40 years. Last week the police came to his father’s house, but he stayed inside.
When asked for details about the police visit, he said last week the police came to his father’s house, but they didn’t answer the door and then his parents travelled to [Country 1]. As to any difficulties his father faced previously, he said he was last arrested in 1995, and he said since 1995 the police come but his father gives them money, and he is safe as the Indian police are very corrupt.
The Tribunal queried why the applicant would face harm as a member of the party who has no profile and has not been active, if his father, who he claims is active and is a senior advisory member, has not faced any difficulties since 1995 beside the police coming to his home (who he pays off). The Tribunal questioned whether he would face a real chance of serious harm or risk of significant harm due to his involvement in SAD (Amritsar) as a member. He said his father is an old man and his father was born in [Year] and he can just stay inside his room. The Tribunal questioned this when the applicant’s father is currently [Age] years of age and has been active since 1995.
The Tribunal asked the applicant why he left India in April 2009; he said he was attacked by the RSS around three months before he departed. He said he was travelling on a motorbike with a friend, [Mr E], after a rally and a car came from behind and hit the motorbike. His friend fell off and ran away but the applicant was stuck under the motorbike and could not run and they bashed him. He said his friend went to the shop keepers who ran out and the RSS fled. He said he was targeted because he is a member of SAD (Amritsar) and had attended rallies. The Tribunal noted that in his statement he said that he was beaten in December 2008 by RSS members and the Indian police, but he has given no evidence at today’s hearing that he was beaten by the police at that time, and he said he had been beaten by police a couple of months after he was married. He said the Indian police picked him up when a political leader called [Mr B] had been murdered. He said he was beaten and kept for a couple of days and then his father paid money. The Tribunal noted there was no evidence of such a person from SAD (Badal) being murdered, and when the applicant was asked who he was, he said he was a party member. The Tribunal noted that in the applicant’s statement, he said that this happened in 2007, while at today’s hearing he said the Indian police beat him in 2008, a couple of months after he was married, being late November 2008. The applicant responded that he also said that at the Department interview.
The Tribunal noted the applicant’s evidence that he became a member of the party in April 2007, but before that, ever since he was young, he would attend meetings with his father who was quite high up in the party. When asked what he did he said he collected money for the party, and he attended and organised rallies by promoting and organising food, tents and drinks all over Punjab. The Tribunal noted he had said he had also been following this party from Australia. It noted he had said he had fled because of his involvement in the party. It then asked him to talk about the party, its polices and how SAD (Amritsar) was formed. He referred to Simranjit Singh Mann forming the party. He said he was a high-ranking police officer who was pro-Khalistan and formed the party. The Tribunal asked how that came about and he repeated that it was formed by Simranjit Singh Mann in Amritsar and people joined him. The Tribunal asked if he had any more detail as to how and why the party was formed and its history but he did not add anything. It asked him to provide further details as to why Simranjit Singh Mann formed the party, and he said Simranjit Singh Mann was working for the police before the killings. It raised as of concern the lack of detail provided and his lack of knowledge of the formation of the party, which raised questions about his involvement in the manner he claimed.
The Tribunal asked where the head office was, and he said in Amritsar. He said he knows the way there because he went there with his father for meetings but when asked which village or district the head office was or is in in Amritsar and for any information as to where it is, he said he did not know the name, just the way.
The Tribunal asked him whether all Sikhs face persecution in the Punjab and he said only those who support Khalistan. He said Simranjit Singh Mann supports a pro-Khalistan agenda as does SAD (Amritsar). He said they support a non-violent approach.
The Tribunal asked what is meant by the question of Khalistan and he said it is non-violent and peaceful and a quest for equal land. He said the Hindus have their own state, as do the Muslims, and the Sikhs want one too but within the unity of India. He said he wants everyone to live peacefully. He said SAD (Amritsar) supports the unity of India and wants a state for Sikhs within the unity of India. The Tribunal questioned this.
The Tribunal asked whether SAD (Amritsar) had any other policies and he said no corruption and being peaceful. It asked whether the party had anyone in Parliament, and he said Simranjit Singh Mann became an MP at the last election, in a by-election. When asked in which electorate this occurred, he said it was in the area of Malba. The Tribunal noted he represented the area of Sangrur.
It asked him how many candidates the party put up in the last election and he said 17 or 18 for the 2022 election. The Tribunal noted the information indicates it was 43.
The Tribunal asked whether there had recently been a SAD (Amritsar) candidate in the 2017 election in his electoral area and he said he did not know. The Tribunal raised with him via s 424AA that [Mr F] ran for the Lok Sabha election in 2017 in his electorate and he was from SAD (Amritsar). It noted that it may expect that the applicant would know this if he was involved as he claims, and was regularly talking about the party to his father, who is high up in the party.

It also raised with him information as to how SAD (Amritsar) was formed, that is, it began as a faction of the SAD party in 1984 after Operation Blue Star, and questioned why he did not know this if he was a supporter in the manner claimed.
The Tribunal asked the applicant on numerous occasions what SAD (Amritsar) policies are, and he referred to supporting Khalistan, peace and anti-corruption. When asked on numerous occasions again, nothing further was added. The Tribunal asked the applicant if he knew what the Anandpur Sahib Resolution is, which he did not. It outlined this policy. At this point, he was using the interpreter and it became apparent that there were difficulties so the Tribunal adjourned the hearing.
The Tribunal raised of concern the applicant’s lack of knowledge and detail about the party as outlined above.
On 15 May 2023 the applicant’s representative made a written submission, repeating the applicant’s claims and information from the 2020 DFAT report for India, and outlined a number of factors as to the applicants’ current employment and living situation in Australia with regard to a recommendation for ministerial intervention.
At the hearing held on 17 May 2023, as to his father’s activities, the applicant said he was currently the adviser to [Mr G] and he said that [Mr G] had been the [Position] in the party for many years, and he had met him a long time ago.
The Tribunal referred to the applicant’s claim that his political activities in Australia included talking to his father from 2009 to date and asked how often he talked to his father about SAD (Amritsar) politics; he replied, every second or third day. The Tribunal noted that at the Department interview he had said he was not politically active in Australia and he said that was right at that time. He said that since that interview, he has been to Melbourne for the pro-Khalistan referendum and collected money at his temple to send back to the lawyers to assist those Sikhs who have been arrested. As to why he is politically active now when he has not been for the 14 years before in Australia, he said because things have gone up in Punjab so now they send money for lawyers. As to what he was voting for, he said for Khalistan. The Tribunal asked him what he believes in when he says he is pro-Khalistan; he said he wants land for the Sikhs where there is no caste system and everyone has rights. The applicant confirmed he wants a separate state within the unity of India as they do not want to harm anyone. The Tribunal asked him whether he respected the Indian constitution, and he said they want a separate state and do not want a constitution. It raised with him as of concern that he is now saying he does not believe in the unity of India when he previously said he does. He said maybe he misunderstood and they do not want to harm anyone. The Tribunal asked if he is now saying he wants Khalistan to leave India and not be part of India. He said in India there are many states and there should be a state for Khalistan, which is for Sikhs. He said at the moment farmers’ pricing is controlled by the central government. The Tribunal asked him to confirm if he wants a separate state for Sikhs within India called Khalistan and the representative noted he was saying an autonomous body. It questioned whether the creation of the Punjab was that; he said no as at the moment everything is controlled by Delhi and one cannot raise the voice of Khalistan without being jailed. He confirmed he was not into violence to achieve the aims, and was not a militant or terrorist or extremist.
The Tribunal referred to SAD (Amritsar) in India and noted that: it had been openly operating as a party for many years; its President is now an MP; many high-profile members have stood for election; the party has always been pro-Khalistan and non-violent; and in the recent past members had not faced difficulty amounting to serious and significant harm. It questioned why senior figures in SAD (Amritsar) who are pro-Khalistan can stand for Parliament and why he, as a member, would face a real chance of serious harm or real risk of significant harm on return. The applicant referred to having been attacked twice and that they are focusing on the younger generation. When asked where this was happening, he referred to Amritpal Singh, who raised issues, and the young who supported him were sent to jail. The Tribunal noted Amritpal Singh was asking for a nation separate from India; he said it is the same thing. The Tribunal noted there is a difference as one is autonomous within India and one is a separate nation. It noted that he seemed unclear and again asked what being pro-Khalistan means to him. He said the state should be in total control of the Sikhs. The Tribunal noted that he had said previously that he wanted a state within the border of India, which is part of India. It asked for further detail and asked whether he wanted a state within India for Sikhs, like the Punjab; he said they want one in control of the Sikhs. He said they want a new state. The Tribunal asked whether he wanted to be a separate country or nation, like Bangladesh, and he said it does not matter; ‘if they want to kick us out, they can kick us out and we can make a different country’. He said he has believed in it and wanted it since he was born as he has also heard it from his father. The Tribunal raised with him that his evidence appears vague and confusing as to what he believes in as a supporter of Khalistan, that is, whether he wants an autonomous state within India or a separate nation.
The Tribunal noted that there were other organisations in Australia that had been promoting this agenda, and questioned why he had not joined any other political organisation in Australia which existed, or why he had not been involved in politics. It referred to earlier evidence given at the previous hearing which indicated that he did not seem to know these organisations. It noted he did not seem to know organisations such as Sikhs for Justice, when asked previously about who was promoting the referendum in Australia. He said he had not been asked this question. He said the issue has come to the forefront because they want to do a referendum election. The Tribunal asked whether he knew the parties promoting the referendum, and he said it is led by Gurpatwant Singh who started all of this. The Tribunal asked which party he belongs to, and he responded that he is not allowed to go to India as India says he is a terrorist. The Tribunal raised with him that it was being led by the Sikhs for Justice and he said, no, it was being led by Gurpatwant Singh. However, information indicates that Gurpatwant Singh is head of Sikhs for Justice, and that Sikhs for Justice held the ‘Punjabi Independence Referendum’ in Melbourne on 29 January 2023.[5]
[5] ‘What is the Khalistan Referendum and where does Australia stand on the issue’ SBS, 20 January 2023
The Tribunal again raised that it is odd and undermines his claims that he has been in Australia since 2009 and claims to be an active and committed supporter of the pro-Khalistan movement but he has only recently become involved by going to Melbourne for the referendum in January 2023, and he was not involved in the 13 or 14 years previously. He said this is the first time it has happened and nothing had happened before in Australia. The Tribunal raised as of concern that this is the first time he has been involved in politics since his arrival in Australia in 2009, and noted other parties that were active in Australia. It raised whether he is genuine in his belief. He said it is the first time the referendum has happened in Australia. The Tribunal referred to his evidence at the Department interview as to his limited political involvement and he said that nothing similar to the referendum happened before and it is the first time in Australia.
The Tribunal asked him about SAD (Amritsar) in India and questioned how SAD (Amritsar) could operate in India and be pro-Khalistan when many members had stood for parliament; he responded only one had been successful, being the leader, who is an MP. He said they don’t let them get victory due to voter fraud in India. He said there have been rallies and party meetings and the Tribunal queried why he, as a member, would face a real chance of serious harm or a real risk of significant harm, when people could be involved in SAD (Amritsar) in India in a much higher profile way, for example, by standing for election.
The Tribunal asked him whether he knew anyone else in the party structure other than the president, and he referred to his father; he said his generation have left for England or Canada. It referred to his claim as to his father’s involvement assisting the [Position 1] and he said his father currently advises [Mr G]. The Tribunal raised with him via s 424AA that on a list of names of leaders accessed in October 2021, there is no one called [Mr G]. He said [Mr G] was promoted to [Position 2]. It showed him the party list from 2021 and noted he has said [Mr G] had been high up for many years but there appears to be no evidence in 2021 that [Mr G] is on the list. It raised this with him via s 424AA and raised concerns with his father’s role. He noted that [Mr G] was on the official website and the applicant’s representative showed the current list of SAD (Amritsar) party members with [Mr G] named as [Position 2].
The applicant confirmed he departed India in 2009 because of a fear of harm. The Tribunal referred to his previous evidence of being beaten by a group of RSS members and asked how he knew they were from RSS; he said they had stickers.
Other than being beaten by the RSS when he was pushed off his motorbike, the Tribunal asked whether anything else happened and he said there were a few fights. When asked about this again, he said no, and then he referred to when he was picked up by the police as a suspect for murdering the SAD (Badal) member and beaten by them and then released.
The Tribunal referred to the recent affidavits submitted which said he went to Australia because he was tortured, and questioned this with regard to the evidence given as to the difficulties faced prior to 2009. He said they came to his house and climbed the walls to see if he was inside. It questioned his delay in departure when he was beaten by police. He said it took time to leave, given the wedding and paperwork.
He confirmed he fled India fearing harm as a young Sikh man and member of SAD (Amritsar), and he feared the RSS. The Tribunal then raised a number of concerns including his behaviour in relation to living at home and working until he departed, his return to India in 2011 and his delay in applying for a protection visa despite his skilled visa being refused by the Tribunal. It referred to this history and questioned why he did not apply after 12 April 2013 when his appeal was refused by the Tribunal. His responses are outlined below. He referred to fraud undertaken by his agent, and that many people had fraud committed against them and that his wife is good at study. He said his baby was born at that time too. The Tribunal referred to a previous application being refused because of the submission of a bogus document as outlined in the Department decision questioning their credibility. He said it was the migration agent that did this, not them.
As to what happened when he returned to India in 2011, he said he spent the whole time at his parents’ home and had to extend his trip due to injuries he sustained. He said he was coming back from his auntie’s house and stopped at the temple, and someone hit his head and he was beaten. He said they knew his father and that is why they hit him. He said he did not know who beat him at the time but his father found out later that they were from the RSS. As to why he was beaten, he said it was because he is a member of SAD (Amritsar), and as his father is a high-level advisor, and he agreed it could be because he is Sikh.
The Tribunal questioned his statement that he was beaten by police in 2008 when previously he said it had occurred in 2007. He said this was a mistake; he was only beaten in 2007.
The Tribunal also raised concern as to the prevalence of document fraud in India and the weight to be placed on the documents submitted and noted that the two recent affidavits lack may be seen to lack independence. It also referred to the currency of the country information submitted with his application to the Department, being from prior to 2011.
The Tribunal again raised its concerns as to his lack of detailed knowledge of SAD (Amritsar) at the previous hearing, considering the extent of his claimed involvement. He said they want free land and are pro-farmers. It referred to its questioning at the last hearing about the involvement of SAD (Amritsar) in elections in Punjab and questioned why he did not know the names of any of the candidates, and particularly the candidate in his area, who stood for parliament in the 2017 election. It raised with him its concern that he had not been following what was happening. He said there were no victories and no candidate in his area in the last election. The Tribunal raised its concern that he did not know about recent elections and a candidate in his district, given that he has stated he is an active follower. He said the President says they don’t want to put money into the elections because the elections are corrupt and there will be no victory, and it is better to put money toward getting people out of jail. He then said they do put candidates forward, but they don’t spend money on advertising like others.
The Tribunal raised with him its concern that he had said the head office of the party was in Amritsar but when asked which part of Amritsar it was in, he said he had been there many times with his father but did not know any more detail. He said he knows how to get there but doesn’t know the street name because of the time that has passed since he went there. The Tribunal noted the address of the current head office. The Tribunal raised with him that the evidence before it was that they only opened a new party office in Amritsar in 2017 and referred to where the head office was, and he said that was a branch office. He said in Punjab there are no street names and you just go left and right at this building. He confirmed all he could say was that the office is in the city of Amritsar and the Tribunal questioned this as there are areas in a city.
The Tribunal raised with him country information as to the treatment of SAD (Amritsar) members and pro-Khalistan members and non-activists and noted there are sizable Sikh minorities in other Indian states outside Punjab. It questioned whether a person of his profile and activity level, who believes in the unity of India, and is not a terrorist, militant or extremist, would face a real chance of serious harm or a real risk of significant harm throughout India. It also noted that there were large Sikh communities both in and outside the Punjab. It raised with him country information as to the treatment of Sikhs and Sikh men and questioned whether he would face a real chance of serious harm or a real risk of significant harm. It noted he was currently [an Occupation 1], and his family had a [business], and that he had some money, and suggested that relocation appeared reasonable if it found there was a real risk of significant harm in the Punjab. It outlined s 36(3), and referred to third country protection and the right to enter and reside in Nepal within the meaning of s 36(3).
The Tribunal referred to s 5J(6) and questioned whether he had attended the referendum in Melbourne for the purpose of strengthening his claim to be a refugee, as it seems he is not genuinely committed as a believer and activist, and outlined the reasons why. It questioned whether he was an active supporter and genuine in his claimed strong commitment. It raised with him that it did not believe that mere attendance at the event would lead to a real chance of serious harm or a real risk of significant harm on return to India. He agreed that just by attending the event, he would not face harm in India.
The applicant’s representative said that SAD (Amritsar) came into being after the Blue Star Temple incident in 1984. He noted that at that time Simranjit Singh wanted an autonomous Punjab state. He said at that time the applicant was [Age] years old and was travelling with his father, as is the culture in India. He said the President wanted an autonomous state within India. He said the applicant, before he came to Australia, was supporting his father, who was working with [Mr G], the current [Position 2]. The representative showed his phone, which outlined the current office bearers of the party, including [Mr G] as [Position 2]. He said that since his arrival in Australia, the applicant had been funding the party via direct donation, sending money to his father. He said the applicant was in favour of an autonomous state within India but later, some voices in the party were for a separate Sikh nation and collaborated with Singh and Waaris Punjab, and the applicant now supports a separate nation. He said the majority of voices supporting a separate nation for Sikhs are ex pats and the applicant is working with them, attending the rally in Melbourne and voting in the Khalistan referendum. He said the applicant believed in an autonomous state before, but now supports a separate nation for Sikhs.
The Tribunal asked the applicant when or if he became or is in favour of a separate nation for Sikhs as opposed to a separate state within the unity of India, and raised with him as of concern the inconsistency of his belief, and that his evidence was vague and internally inconsistent as to what he meant by being pro-Khalistan for someone who had believed in this issue since birth and had been active. He referred to the death of Deep Sidhu in the previous year, which changed his mind; before that he was for an autonomous state within India and now he is for a separate nation. The Tribunal questioned why he did not say previously that he had recently changed his mind to now wanting a separate nation as opposed to a separate state.
The representative said there is a division in the Sikh community, with the diaspora in favour of a separate nation but those within Punjab mostly not. He said people in India are fearful to express their views, particularly the young, who are in favour of a separate nation. He said the Government of India suffocates the movement by imprisoning those who advocate for a separate Sikh nation. He said the applicant has changed his mind since the death of Depp Sindhu last year and he referred to the jailing of Amritpal Singh. He said SAD (Amritsar) has different views, with the young, like the applicant, wanting a separate nation, and the older Sikhs wanting a separate autonomous state within the Indian boundaries.
As to third country protection, the representative outlined the difficulties faced by Sikhs in Nepal.
As to the applicant’s return in 2011, he noted that the applicant returned to see the situation in India and to determine whether they could live there.
The representative noted that the previous submission of bogus documents was the fault of the migration agent and the applicants were unaware and have struggled for years to defend themselves. The representative noted that they submit they have never misled or intended to do this, and it was the fault of the agent.
The Tribunal raised a number of concerns as to the credibility of the applicant’s claims and, where relevant, these have been outlined below. It questioned whether he was involved, and his father was involved, in SAD (Amritsar) in the manner claimed, whether he had faced the difficulties he claims, and whether he fears return for the reasons he claims. Where relevant, these concerns have been outlined below.

The Tribunal also raised with the applicant independent information as to the treatment of members and followers of SAD (Amritsar), and questioned whether the applicant will face a real chance of serious harm and/or a real risk of significant harm for being a member, activist or follower if he returns.
When asked if he had anything to add, the applicant said everything he has said is true.
Is the applicant credible as to his claims?
Having sighted a copy of the applicants’ identity documents, and on the basis of the applicant’s evidence at hearing, the Tribunal accepts that the applicants are nationals of India for the purposes of s 36(2)(a) of the Act. For the purposes of s 36(2)(aa), the Tribunal accepts that India is the receiving country.
The Tribunal accepts that the applicant has been a member of SAD (Amritsar) since April 2007. It accepts he has, since his arrival in Australia, sent money to SAD (Amritsar) as he indicated at hearing and as shown by donation receipts and a membership card. It accepts he is a Sikh man.
However, for the reasons that follow, it views the applicant’s support as superficial and uninformed and finds that he is not or was not, prior to his departure from India, an informed, strong or active member or supporter of SAD (Amritsar), and is of the view the applicant has exaggerated and embellished: his and his family’s involvement in, commitment to and support for SAD (Amritsar); activities he has undertaken to support SAD (Amritsar) in India and Australia; and his belief and support for Khalistan. For the reasons below, it does not accept that the applicant is a credible witness in relation to his assertions that he or his father are strong and active supporters of SAD (Amritsar), and that in the past when the applicant lived in India he was an activist who collected money for the party, attended and organised rallies, demonstrations, protests and meetings, organised food and tents, and collected money with his father or alone. It also does not accept that his brother departed in fear due to his or the family’s involvement in SAD (Amritsar). Also, for the reasons that follow, it does not accept that his father is a committee member or high-ranking official who ever was advisor to the [Position 1 or 2] or a prominent person in SAD (Amritsar) who regularly attends high level meetings, nor that the applicant, from childhood until his departure in 2009, has attended meetings with him, including at the head office. It also does not accept the applicant talks to his father regularly, that is, every two or three days, about SAD (Amritsar) politics. In addition, for the reasons below, it does not accept the applicant is credible as to the difficulties he faced in India as he or his father were members of SAD (Amritsar) or pro-Khalistan supporters or as Sikhs, and that he fled India in fear of being tortured or harmed, in 2009 or 2011. It also does not accept that that the applicant is an informed and active supporter of the pro-Khalistan agenda and genuine believer in a separate Sikh nation, has recently talked in any detail to those in his temple about this issue, or has engaged in fundraising for lawyers for pro-Khalistan supporters or attended the referendum in Melbourne for any other reason than to strengthen his claim to be a refugee.
In making these findings, the Tribunal has allowed for the possibility of discrepancies arising because of genuine lapses of memory, nervousness and the manner in which responses can differ depending on the nature and manner in which a question is asked. It is also sensitive to the various cultural differences that can impact on an applicant’s response to questioning, as discussed in the Tribunal’s ‘Guidance on the Assessment of Credibility’. The Tribunal does not accept that any of these factors explain or excuse the concerns which, cumulatively, have led it to find that the applicant is not a reliable witness as to these claims.
In making these findings, the Tribunal has considered the documentary evidence submitted in support, but for the reasons outlined below, these do not overcome its findings as to the applicant’s credibility as to these claims.
SAD (Amritsar) supporter and follower

100. For the reasons that follow, the Tribunal does not accept that the applicant is a credible witness concerning his claim that he is or was, prior to his departure from India, an informed, strong or active member of SAD (Amritsar). It is of the view that the applicant has exaggerated and embellished his and his family’s involvement in, commitment to and support for SAD (Amritsar), including activities he has undertaken to support SAD (Amritsar) in India and Australia and his genuine support for Khalistan as a member of SAD (Amritsar).
101. Firstly, the applicant has claimed active involvement in SAD (Amritsar) while in India, attending rallies and meetings with his father since childhood. He claims his father has been a prominent member of the party for over 40 years, and has been a committee member and advisor to the [Position 1 or 2] of the party for many years. He also claims that he talks to his father often, that is, every two to three days, about party politics. However, the applicant’s evidence was vague and lacking in detail as to how SAD (Amritsar) was formed. While he knew it was formed by the long-term leader Simranjit Singh Mann, who is currently an MP in the Punjab representing the party[6], he could not provide any detail about how or why the party formed, despite being asked on a number of occasions, other than stating that Simranjit Singh Mann worked for the police before there were killings, and that he wanted Khalistan. While the applicant’s representative provided submissions as to how it was formed and there was written evidence submitted, the Tribunal is of the view that if the applicant was as active and committed as he claimed, attending meetings and rallies while in India, and that he continues to talk to his father, who is high up in the party, regularly, he would have been able to provide more detail than he could about how and why the party formed. In particular, the information indicates that SAD (Amritsar), formed by Simranjit Singh Mann, began as a faction of SAD but split from it after Operation Blue Star in 1984, when there was a government raid on the Golden Temple, a highly significant event,[7] as the other SAD factions were more pro-India and non-separatist[8]. Other sources note that while Simranjit Singh Mann was active in politics from 1984, following the government raid on the Golden Temple, and leader of SAD from 1987, SAD (Amritsar) became a party in 1994 after other SAD factions would not follow the Amritsar Declaration[9], which was about giving Sikhs a right to self-determination. In his summation, the applicant’s representative noted that the party came into being in 1984. The Tribunal is of the view that if the applicant was as committed, involved and active as he claimed, and talked to his father about the political issues every two to three days, and that his father is high up in the party, he would have been able to provide more detail when repeatedly asked at hearing how and why the party was formed. While he was able to refer to the issue of Khalistan, the Tribunal notes below his lack of understanding of this issue as promoted by the party. While he was able to name Simranjit Singh Mann as President and an MP, this is widely known in the Punjab and consistent with his membership of the party. The Tribunal views his lack of knowledge as not commensurate with his claimed past activities and involvement in the party and his father’s and family’s claimed present and past involvement. This adds to the finding the applicant is not credible or genuine as to his and his family’s level of past support, activism and involvement in India, and that he talks to his father every two to three days about the party, and that his father is high up in the party, in the manner claimed.
[6] As noted by the applicant at hearing
[7] See 3.64 and 3.65, DFAT Country Information Report India, 10 December 2020
[8] India: The Shiromani Akali Dal (Amritsar) (SAD(A)) [Shiromani Akali Dal (Mann); SAD(M); SAD(Amritsar); Shiromani Akali Dal (Amritsar) (Simranjit Singh Mann)], including origin, structure, leadership, objectives, and activities; requirements and procedures to become a member of the party, including membership cards; treatment of party members and supporters by authorities (2017–June 2020) Research Directorate, Immigration and Refugee Board of Canada
[9] India: The Shiromani Akali Dal (Amritsar) (SAD(A)) [Shiromani Akali Dal (Mann); SAD(M); SAD(Amritsar); Shiromani Akali Dal (Amritsar) (Simranjit Singh Mann)], including origin, structure, leadership, objectives, and activities; requirements and procedures to become a member of the party, including membership cards; treatment of party members and supporters by authorities (2017–June 2020) Research Directorate, Immigration and Refugee Board of Canada
102. Further, despite his claim that he accompanied his father on numerous occasions to meetings to the head office of the party in Amritsar as his father had a high ranking role in the party, being advisor to the [Position 1 or 2], when asked for further details as to where the head office was in Amritsar (including the village or district area in Amritsar) he said he did not know the details, he just knew the way there. When the Tribunal raised this as of concern, noting that he was born in [Year], and it may expect that if he attended the head office up until he departed in or around 2009, he would have been able to provide more detail, he said he does not know the street name because it was a long time ago and he said that you just go left and right, and all he could say was that it was in Amritsar. The Tribunal accepts that he may not be able to provide the exact address or street name as it was prior to 2009, but is of the view that if he attended the SAD (Amritsar) head office with his father on numerous occasions before he departed India, he would have been able to provide more detail as to where the SAD (Amritsar) office was located within Amritsar. It does not accept that there are no details or areas within Amritsar, being a city of over one million people. It follows that it does not accept he ever attended meetings at the head office in Amritsar with his father, and this adds to the finding the applicant is not credible as to his claimed level of past involvement in the party as his father is high up in the party. This adds to the finding he is not credible as to his claimed level of support, activism and involvement.
103. Further, he claimed that he spoke to his father about the party often, that is, every two to three days, and his father was an advisor to the [Position 2 or 1] and a senior figure in the party. However, other than knowing that Simranjit Singh Mann was now an MP and the only current MP for SAD (Amritsar) and that he is head of the party, which is widely known and widely reported in the Punjab, where the applicant is from, he knew limited detail about the party’s activity in elections. For instance, in relation to how many candidates stood for elections for SAD (Amritsar) in the last election in 2022, he said 17 or 18, but the information indicates there were 43.[10] In addition, he did not know whether a SAD (Amritsar) candidate stood for election in his electorate in the 2017 elections, as raised with him via s 424AA. Information indicates that [Mr F] was the SAD (Amritsar) candidate for the Lok Sabha 2017 elections in the electorate of Garshankar, the area the applicant is from and where his father continues to reside.[11] When this concern was raised at the first hearing, the representative requested time to respond[12] and at the second hearing the applicant said the President says they don’t want to put money into the elections because the elections are corrupt and there will be no victory, and he says it is better to put money toward getting people out of jail. He said they do put candidates forward for election but they don’t spend money on advertising like others. The Tribunal does not accept that his explanation overcomes its concern, and is of the view that if the applicant speaks to his father every two or three days, his father is high up in the party in the manner claimed, and the applicant was as active and committed as he claims while in India and continues to be in Australia by talking to his father, he would know information about the candidates, even if money is not put into advertising and the elections are corrupt. This adds to the Tribunal’s finding that he was not and is not a committed, informed and active supporter of SAD (Amritsar) in the manner claimed both before he left India and after arriving in Australia. In turn, it indicates that he is not credible as to his and his father’s claimed level of support, activism and involvement.
[10] Simranjit Singh Mann announces 43 candidates for Punjab Assembly elections: The Tribune India, 18 December 2021, < [Mr F] | ElectWise, < At this point the applicant did not request the interpreter and the Tribunal was of the view he understood the questions. It was only later that the Tribunal adjourned the hearing, after the Tribunal started asking about polices of the party other than it being pro-Khalistan, and the applicant asked to use the interpreter; at this point it appeared the applicant and the interpreter were having difficulty communicating
104. Further, when the applicant was asked about the polices of SAD (Amritsar), despite mainly referring to the support of Khalistan, which concurs with information indicating that SAD (Amritsar) is pro-Khalistan, he provided evidence regarding what it means to be a pro-Khalistan supporter that was inconsistent with that advocated by SAD (Amritsar), and his evidence was internally inconsistent as to what support of Khalistan meant to him. In particular, he initially said (albeit changing his mind, as outlined below) that he and SAD (Amritsar) support a non-volent approach, which involves a separate state for Sikhs within the unity of India, being an autonomous state, and not a separate nation. However, the information indicates that while SAD (Amritsar) promotes a non-violent approach[13], the party, through its leader, since its inception, has had as a policy the establishment of Khalistan, a Sikh homeland or nation[14] or a separate Sikh country.[15] Information notes that while the terminology changes and it is sometimes referred to as “Sikh sovereignty”, “A sovereign Sikh homeland “ or “Sikh self-determination”, the objective remains the same, being a separate Sikh nation, rather than a state within the unity of India.[16] In this regard, information indicates that Simranjit Mann openly advocates for the creation of Khalistan, a separate Sikh country,[17] and that in 2014, Mann demanded the creation of Khalistan "to act as a buffer state between India, China and Pakistan”[18]. The information indicates that while SAD (Amritsar) advocates for a separate Sikh country, it is a "non-violent separatist party", that is, it is committed to the creation of Khalistan through political means[19].
[13] SAD(A) is recognized by the Election Commission of India and advocates for Khalistan through democratic means in India: Situation and treatment of suspected or perceived Sikh militants and Khalistan supporters in the state of Punjab by society and the authorities; prevalence of arrests, including methods used by the police to track them; treatment of Sikhs outside the state of Punjab by society and authorities; ability for Sikhs to relocate within India outside the state of Punjab (2020–May 2022), Research Directorate, Immigration and Refugee Board of Canada
[14] Immigration and Refugee Board of Canada, India: The Shiromani Akali Dal (SAD) political party in India, including differences between the Shiromani Akali Dal (Amritsar), led by Simranjit Singh Mann, and the Shiromani Akali Dal led by Parkash Singh Badal, 21 April 2011, IND103727.E, available at: < [accessed 27 July 2023]
[15] India: The Shiromani Akali Dal (Amritsar) (SAD(A)) [Shiromani Akali Dal (Mann); SAD(M); SAD(Amritsar); Shiromani Akali Dal (Amritsar) (Simranjit Singh Mann)], including origin, structure, leadership, objectives, and activities; requirements and procedures to become a member of the party, including membership cards; treatment of party members and supporters by authorities (2017–June 2020), Research Directorate, Immigration and Refugee Board of Canada
[16] India: The Shiromani Akali Dal (Amritsar) (SAD(A)) [Shiromani Akali Dal (Mann); SAD(M); SAD(Amritsar); Shiromani Akali Dal (Amritsar) (Simranjit Singh Mann)], including origin, structure, leadership, objectives, and activities; requirements and procedures to become a member of the party, including membership cards; treatment of party members and supporters by authorities (2017–June 2020), Research Directorate, Immigration and Refugee Board of Canada
[17] Hindustan Times 23 Mar. 2016; Chima 1 May 2018
[18] Hindustan Times 23 Mar. 2016; Chima 1 May 2018. Asian News International (ANI)
[19] Chima 1 May 2018; India: The Shiromani Akali Dal (Amritsar) (SAD(A)) [Shiromani Akali Dal (Mann); SAD(M); SAD(Amritsar); Shiromani Akali Dal (Amritsar) (Simranjit Singh Mann)], including origin, structure, leadership, objectives, and activities; requirements and procedures to become a member of the party, including membership cards; treatment of party members and supporters by authorities (2017–June 2020), Research Directorate, Immigration and Refugee Board of Canada
105. Further, despite the applicant initially claiming pro-Khalistan meant to him a state within the unity of India, that is, an autonomous state, following his representative’s submission, as outlined above, which the Tribunal does not agree with (as the information indicates SAD (Amritsar) has always advocated for a separate Sikh nation), the applicant’s evidence changed in relation to what being pro-Khalistan meant to him, from wanting an autonomous state within India, to wanting a separate nation in the last few years. When the Tribunal then asked him whether or not he was in favour of a separate nation for Sikhs, as opposed to a separate state within the unity of India, he changed his view from what he had said earlier in the hearing, stating that he was in favour of a separate nation, and referred to the death of Deep Sidhu[20] in the previous year, which changed his mind. When the Tribunal raised its concern as to his changing evidence and why he had not stated this previously when repeatedly asked, he said he had changed his view and the applicant’s representative said that people in India are fearful to express their view as the Indian authorities suffocate such an idea, but the diaspora promotes the idea of a separate nation. However, the applicant has been in Australia since 2009. The Tribunal views the applicant’s confusing, changing and inconsistent evidence as to what being pro-Khalistan means and his lack of understanding of SAD (Amritsar)’s policy towards Khalistan, which is a central policy of the party, as undermining his claims that: he is a committed, active member of SAD (Amritsar); he talks to his father about SAD (Amritsar) politics every two or three days; and his father his high up in the party, and committed and informed. It is of the view that if his claims were accurate, his views as to Khalistan would be internally consistent and consistent with that advocated by SAD (Amritsar). This adds to the Tribunal finding he was not and is not a committed, informed and active supporter of the SAD (Amritsar) in the manner claimed both before he left India and after he arrived in Australia. This also adds to the finding he is not credible as to his and his father’s claimed level of support, activism and involvement.

142. Research by the Department of Home Affairs Country of Origin Information Section (COISS) found no information in the sources consulted that mere supporters of SAD (Amritsar) are targeted and harmed for their support of the party,[35] although the situation can be different for high profile activists and those who actively advocate for Khalistan or a separate Sikh country.
[35] Sources consulted include CISNET, Immigration and Refugee Board of Canada, ecoi.net, local and international news sources, and targeted internet search from Department of Home Affairs, COISS India: 20210914101814 dated 26 October 2021
143. Information indicates that in June 2020 active supporters of SAD (Amritsar), including the son of Simranjit Singh, were stopped trying to enter the Golden temple by police but they were ultimately allowed inside after they held a demonstration. [36] Information indicates active SAD (Amritsar) members have been taken into custody or preventative detention prior to major events, rallies or important anniversaries such as Operation Blue Star.[37]
[36] ‘Every Sikh wants Khalistan, says Akal Takht priest on Operation Bluestar anniversary’, The New Indian Express, 6 June 2020, 20210928170524
[37] India: The Shiromani Akali Dal (Amritsar) (SAD(A)) [Shiromani Akali Dal (Mann); SAD(M); SAD(Amritsar); Shiromani Akali Dal (Amritsar) (Simranjit Singh Mann)], including origin, structure, leadership, objectives, and activities; requirements and procedures to become a member of the party, including membership cards; treatment of party members and supporters by authorities (2017–June 2020), Research Directorate, Immigration and Refugee Board of Canada
144. In 2018 the Immigration and Refugee Board interviewed Jugdep Chima, an Indian academic, who commented on rivalry between Shiromani Akali Dal (Mann) and Shiromani Akali Dal (Badal):
Mann has been charged with ''dozens of sedition cases'' for publicly calling for a Sikh independent country. The SAD(A) deems the SAD(B) ''too soft'' when it comes to defending Sikh political interests, leading to tensions between both parties. SAD(A)'s activists often disrupt rallies held by the SAD(B)-BJP coalition and they are also often ''roughed up'' by SAD(B)'s supporters or members. SAD(A)'s activists were ''beaten up'' several times and sometimes arrested by police when disrupting the SAD(B)'s and the BJP's rallies. There are no armed militias associated with either the SAD(A) or the SAD(B), though there are activists that can ''act like militias,'' while being mainly activists. In terms of treatment of its members, the SAD(B) is an established constitutional party that does not challenge the unity of India; SAD(B)'s members do not face ''political persecution." However, because SAD(A)'s activists advocate for a Sikh country, their situation might be "different"; there have been "multiple" cases of "temporary arrests" of SAD(A)'s members (Chima 1 May 2018).[38]
[38] 'IND106096.E: India: The Shiromani Akali Dal (SAD) political party, including differences between the SAD (Badal) led by Parkash Singh Badal and the SAD (Amritsar) led by Simranjit Singh Mann; relations with authorities (2016-April 2018)', Immigration and Refugee Board of Canada, 15 June 2018, pp.3-4, 20190212093328

145. Information indicates that Sikhs who advocate for an independent Khalistan, including by attending demonstrations, meetings or posting on social media, may be subject to attention and monitoring by authorities, as well as criminal charges.[39] DFAT assesses that violence among supporters of separatism is possible but that generally participants in Punjabi politics face a low risk of official or societal discrimination.[40] Information indicates that security services are more likely to focus on Sikh separatists because they represent “a perceived political threat to the unity of India”[41] and that Khalistan activists who participate in activities such as demonstrations, meetings or posting on social media will be monitored by the authorities,[42] and that Khalistan activists are harassed by police.[43]
[39] 'IND201037.E India: Situation and treatment of suspected or perceived Sikh militants and Khalistan supporters in the state of Punjab by society and the authorities; prevalence of arrests, including methods used by the police to track them', Immigration and Refugee Board of Canada, 30 May 2022, pp.5-6, 20220714152655; 'IND106294.E India: Situation of Sikhs outside the state of Punjab, including treatment by authorities and society; ability of Sikhs to relocate within India; treatment of Khalistan supporters or perceived supporters outside of Punjab (2017-October 2019)', Immigration and Refugee Board of Canada, 16 December 2019, 20200310144059
[40] At 3.103, DFAT Country Information Report India, 29 September 2023.
[41] 'IND201037.E India: Situation and treatment of suspected or perceived Sikh militants and Khalistan supporters in the state of Punjab by society and the authorities; prevalence of arrests, including methods used by the police to track them', Immigration and Refugee Board of Canada, 30 May 2022, pp.5-6, 20220714152655; 'IND106294.E India: Situation of Sikhs outside the state of Punjab, including treatment by authorities and society; ability of Sikhs to relocate within India; treatment of Khalistan supporters or perceived supporters outside of Punjab (2017-October 2019)', Immigration and Refugee Board of Canada, 16 December 2019, 20200310144059
[42] 'IND201037.E India: Situation and treatment of suspected or perceived Sikh militants and Khalistan supporters in the state of Punjab by society and the authorities; prevalence of arrests, including methods used by the police to track them', Immigration and Refugee Board of Canada, 30 May 2022, 20220714152655
[43] 'IND201037.E India: Situation and treatment of suspected or perceived Sikh militants and Khalistan supporters in the state of Punjab by society and the authorities; prevalence of arrests, including methods used by the police to track them', Immigration and Refugee Board of Canada, 30 May 2022, 20220714152655
146. For example, in March 2023, 12 people were charged with having links to the proscribed organisation, the Khalistan Tiger Force,[44] in 2020 three people were charged with terrorism offences under the UAPA when they shared photos and videos relating to the Khalistani movement on social media,[45] and in 2019 a Sikh who was part of a WhatsApp group advocating for the Referendum 2020 movement, an online campaign for Khalistan, was convicted of terrorism charges under the UAPA after sharing a motivational song via the app.[46] In December 2021, police arrested three people for distributing pro-Khalistani material including registration forms to vote for a referendum to form an independent Khalistan.[47] The government also blocked 40 websites belonging to the US-based Sikhs for Justice, a banned pro-Khalistan group.[48]
[44]'NIA chargesheets 12 persons linked to pro-Khalistan outfits, Pakistan-based elements', The Hindu, 21 March 2023, 20230322161529
[45] 'Religious Minorities In India Report', Council on Minority Rights in India, 01 November 2022, p.181, 20221128135538
[46] 'Religious Minorities In India Report', Council on Minority Rights in India, 01 November 2022, p.181, 20221128135538
[47] ‘Woman among three Khalistani sympathisers arrested in Patiala’, The Tribune, 28 December 2021, 20220722123915
[48] 'India blocks 40 websites of banned US-based pro-Khalistani group 'Sikhs for Justice''’, Press Trust of India, 5 July 2020, 20200706103456
147. As to the recent situation in Punjab, with regard to Amritpal Singh, COISS advises that:
The pro-Khalistani group Waaris Punjab De and their current leader Amritpal Singh have attracted attention from authorities and faced arrests. Waaris Punjab De was launched in September 2021 by a Sikh actor named Deep Sidhu in Punjab, and it considered itself a ‘pressure group’ and a social platform to protect the rights and culture of Punjab. After the death of Sidhu in a car accident in February 2022, a 29 year old Sikh man called Amritpal Singh from Dubai proclaimed that he was the new leader of the organisation. Upon returning to his homeland in India, the self-styled ‘preacher’ Singh began calling for violence and espousing the cause of Khalistan on its platforms. This caught the attention of the authorities along with Singh’s public appearances openly carrying weapons In February 2023 the group caused further concern when supporters stormed a police station armed weapons demanding the release of two of their supporters that had been accused of kidnapping and theft, with some police being injured. Reports also state that the men used the Sikh religious book, the Guru Granth Sahib as a shield to keep police at bay during the incident. The accused supporters were subsequently discharged and released by Police. The Central government criticised the state government alleging a breakdown of law and order and risks to national security. This resulted in a sustained crackdown on members of Waaris Punjab De in March 2023 with at least 353 people arrested, seven under the National Security Act. Amritpal Singh went into hiding and the authorities then launched a month-long manhunt, deploying thousands of paramilitary soldiers and suspending mobile internet services in some areas of Punjab. In April Singh was arrested in a village in Punjab under the National Security Act and sent to a prison in Assam. Allegations of criminal links have also been made against Singh.

148. However, there is no evidence that the applicant is a member of Waaris Punjabi and while the applicant was able to refer to Amritpal Singh and the death Deep Sidhu, the Tribunal is of the view that this information is widely known.
149. On the basis of the above information and what is accepted of the applicant’s circumstances and political activities, the Tribunal does not accept that the applicant will be arrested, tortured, killed, kidnapped, threatened, harassed, harmed, beaten, picked up by police, have to pay bribes, be intimidated, have his property damaged, or be prevented from following SAD (Amritsar), due to any fear of harm regarding the way he has been treated in the past, as the Tribunal has found the applicant to be a superficial, uninformed follower who is not an activist. In making this finding, and based on what it accepts of the applicant’s circumstances and genuine activity, the Tribunal notes that it has found that as the applicant and his family have not been activists and involved in protests in the past, they will not be in the future. On the basis of the applicant’s evidence, it does not accept the applicant will face any difficulties on return to India or be imputed with any political opinion because of his or the second named applicant’s attendance at any event, including the referendum event they attended in Melbourne.

On the basis of the above information and what is accepted of the applicant’s circumstances, the Tribunal does not accept that the difficulties the applicant will face on account of his Sikh race, and political opinion and activities amounts to serious harm as outlined in s 5J(5) or meets the definition of significant harm as defined in s 36(2A) of the Act.

151. On the basis of the above information and what is accepted of the applicant’s circumstances, the Tribunal therefore finds that the applicant does not face a real chance of persecution involving serious harm if he returns to India in the reasonably foreseeable future on account of his Sikh race, his political opinion or an imputed political opinion because of his father’s or family’s activities.
152. On the basis of the information and what is accepted of the applicant’s circumstances, including his claims he will not face a real risk of significant harm as a result of mere attendance at the event in Melbourne and voting in the referendum, the Tribunal does not accept 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 as defined in s 36(2A) as a result of his Sikh race, his political opinion or an imputed political opinion because of his father’s or family’s activities.
153. The Tribunal therefore finds that the applicant does not face a real chance of persecution involving serious harm if he returns to India in the reasonably foreseeable future for the reason of his political belief and following. The Tribunal therefore does not accept 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 as defined in s 36(2A) for reason of his political belief and following.
Conclusions regarding the refugee claims
154. The Tribunal has considered whether the combination of each of the individual claims raised by the applicant would together create a real chance of him and the other applicants being subjected to serious harm in India in the reasonably foreseeable future. Having carefully considered the cumulative effect of these factors and attributes in light of the information and evidence before it, and given its reasons in relation to each factor, the Tribunal does not accept that there is a real chance the applicants would face serious harm for these reasons if they return in the reasonably foreseeable future.
155. Based on all the evidence before it, including the applicant’s claimed past circumstances and his current personal and family circumstances and profile in India, the Tribunal is not satisfied that any of the applicants face a real chance of persecution involving serious harm for reasons of race, religion, nationality, membership of a particular social group or political opinion if they return to India in the reasonably foreseeable future. For the reasons given above, the Tribunal therefore is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary protection
156. The Tribunal has also considered whether the applicants are eligible for complementary protection. Findings have been made above in this regard.
157. The Tribunal has considered whether the combination of each of the individual claims raised by the applicant would together create a real risk of any of the applicants being subjected to significant harm on return to India. Having carefully considered the cumulative effect of these factors and attributes in light of the information and evidence before it, and given its reasons in relation to each factor, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of any of the applicants being removed from Australia to India, there is a real risk that they will suffer significant harm as defined in s 36(2A) of the Act.
Ministerial intervention
158. The Tribunal notes that under s 417 of the Act, the Minister has a discretionary power to intervene in a matter and grant a visa to an applicant where he considers it would be in the ‘public interest’ to do so.
159. The Minister’s Guidelines indicate the matters that should be brought to his attention[49]. In particular, it refers to:
[49] PAM3: Act - Ministerial powers - Minister’s guidelines on ministerial powers (s351, s417 and s501J)
Cases that have one or more unique or exceptional circumstances, such as those described below, may be referred to me for possible consideration of the use of my intervention powers:
·strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident.[50]
[50] Ibid

160. Information before the Tribunal indicates that the child of the applicants is an Australian citizen who was born in Australia on [Date]. The evidence indicates she is well integrated into Australia, and speaks Punjabi but cannot write it. The applicant was of the view that as she cannot write Punjabi or speak Hindi, she would have difficulties integrating in India. The applicants have provided her NAPLAN results and the Tribunal notes that she is attending [primary school].
161. The applicants are both employed, the applicant as [an Occupation 1], and the second named applicant as [an Occupation 2] for the last six years. They have saved $78,000 to buy a home.
162. Having regard to the applicant’s circumstances outlined above and having considered the ministerial guidelines relating to the Minister’s discretionary power under s 417, set out in departmental policy ‘Minister’s guidelines on ministerial powers (s351, s417, and s501J)’ the Tribunal considers this case should be referred to the Department to be brought to the Minister’s attention.
CONCLUSIONS
163. For the reasons given above, the Tribunal is not satisfied that any of the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(a).

Having concluded that the applicants do 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 any of the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicants satisfy 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 applicants do not satisfy any of the criteria in s 36(2).
DECISION

166. The Tribunal affirms the decision not to grant the applicants protection visas.
Gabrielle Cullen
Member
ATTACHMENT - RELEVANT LAW
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). 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 below.
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 below.

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.
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.
…

[2023] AATA 4384

3 October 2023

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