1710703 (Refugee)

[2023] AATA 2738

1710703 (Refugee) [2023] AATA 2738 (20 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Simon Jeans (MARN: 9253749)

CASE NUMBER:  1710703

COUNTRY OF REFERENCE:                   India

MEMBER:Melissa McAdam

DATE:20 April 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 20 April 2023 at 5:18pm

CATCHWORDS
REFUGEE – protection visa – India – father’s involvement in Sikh separatist organisation – subsequent death at hands of police in 1991 – applicant and mother’s police detention in 2013 – mother’s death – tribunal accepted father’s involvement in separatist group – credibility issues with other claims – religion – Sikh – interfaith marriage with Hindu – unable to relocate to Nepal as no valid passport – well-founded fear of persecution due to religion and interfaith marriage – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65. 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIMAC v SZRHU (2013) 215 FCR 35

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 10 May 2017 to refuse to grant the applicant a protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, who claims to be a citizen of India, applied for the visa on 24 March 2016.  Her husband was included in her visa application and in her review application. Given the applicant’s request that some of her information remain confidential from her husband the Tribunal has separated the review files for the applicant and her husband.[1] 

   [1] The applicant’s husband’s AAT File number is [deleted].

3. The applicants were represented in relation to the review.

   CRITERIA FOR A PROTECTION VISA

4. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

5. 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.

6. 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).

7. Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.

8. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.

   Mandatory considerations

9. 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.

   Protection visa application

10. The following is a summary of the claims and information provided by the applicant in her Protection visa application:

    a.She was born in [year] in Punjab province, India.  She submitted a copy of her expired Indian passport, her husband’s Indian passport, and their daughter’s Indian passport.  Their daughter was born in Australia and is now a naturalised citizen of Australia. 

    b.The applicant is of Sikh ethnicity and religion.  The applicant’s husband’s ethnicity is Hindu and his religion is Shiv Sena Hindu.

    c.She last arrived in Australia in March 2013 on a Student visa.

    d.She did not disclose her story when she arrived in Australia because she was suffering from trauma.  She and her husband fear they will be murdered if they return to India.  Both her parents were murdered by the police.

    e.Her father was found to be a terrorist and also a member of the terrorist groups involved in terrorism before the Golden Temple attack. Her father was transferred from one prison to the other till the police murdered him while imprisoned. The police produced false and concocted reasons for his death after they killed him. The locals were warned that they should keep away from her family and those who had contacts with her family were taken into custody as terrorists.

    f.Her family were isolated by the community. She was [age] years old and when she grew up her mother told her that the Hindu police had tortured, sexually assaulted and humiliated her mother at her own home and spread rumours that she was a prostitute.  All the locals avoided her mother and she lived a secluded life till she died. The police [killed her] as she knew all the police officers who murdered her husband and molested her. They were threatening her that they will kill her if she attempted to put a case against them.

    g.The applicant’s mother sent the applicant to her sister's place when she was young because the police tried to take her away from her mother. The applicant then lived with her aunt and called her aunt her mother to avoid the police. The applicant grew up in her aunt's house and her mother met her secretly. Her mother told the applicant never to come home or to meet her in public because the police would abduct the applicant and could take her away. Her mother and aunt wanted the applicant to leave the country as the police tortured her mother asking about the applicant and where she was staying in India.

    h.The applicant married her boyfriend and her mother ordered her to leave the country before the police found her. The applicant came to Australia but was depressed leaving her mother alone back in India and couldn't concentrate on her studies. Even after her daughter was born in Australia she couldn't get out of the trauma. People told her that as she has a daughter she could get permanent residence status in Australia. She was told that her daughter cannot live alone at this age in Australia by herself and they can apply for residence status after she completed her studies.

    i.The applicant will be taken away by the Punjab police as the Punjab police are mostly Hindus and controlled by Brahmin agencies around Punjab. The applicant’s father and [Mr B] canvassed against the dowry, alcoholism and domestic violence that were spread among the Sikhs who followed the Hindu traditions. Due to their campaign the Sikhs understood the difference between the Sikh and Hindu religions and came forward to fight for Khalistan which is a separate homeland for Sikhs.  Her father along with the Khalistan group members campaigned to kill the Brahmin Hindus and the Hindu police who were forcing the Sikh women to leave and abandon their Hindu husbands unless they paid their husbands the dowry demanded. The applicant’s father and mother were involved in the campaign among the Sikhs to get them to support the Khalistan movement and her father and his group [were] arrested by the police and remanded in different prisons. After her father was released he was murdered by the police.

    j.The police never stopped harassing the applicant’s mother.

    k.When the applicant went back to India in 2012 her mother told her that the police were asking her where the applicant was and they threatened to take the applicant away as she married a Hindu and was trying to convert him to Sikhism. The officers told the applicant’s mother that as the applicant is the daughter of her father who was the cause of the death of many Hindus, Brahmins and Hindu police officers, she should be punished for marrying a Hindu.  The applicant stayed at her grandmother's house where she met her mother. In fear she fled from India again.

    l.When she went back to India for her father-in-law's funeral in February 2013, some fanatic Hindu who was attending the funeral informed the police that she was present and the police arrested her and took her to [City 1] police station where she was asked whether she had converted her husband to Sikhism. They refused to believe that she never converted him but blamed her father and mother for the death of many Hindus in the past and told her they planned to separate her from her husband. She was sexually assaulted. Her mother and husband came to the police station to release her but her husband was not allowed to meet her. Her mother was remanded with her and both of them were beaten. Her mother couldn't accept that the applicant was molested by the officers and beat her inside the prison for returning back to India. Her mother was beaten for getting the applicant married to a Hindu after canvassing against the Hindus with her father. Her husband made arrangements with politicians for their release. When the applicant came out her mother ordered her to flee from the country as soon as she could. Her mother was [killed] by the police officers at her residence and the applicant’s husband refused to permit the applicant to see her mother's body in fear of being arrested once again.

    m.The applicant will be murdered if she returns back to India. The police ordered that she should not enter India again or file any case against them for the murder of her father and mother. She was ashamed of herself after the incident and refused to make a protection visa application to hide these facts from everyone in this world. She hoped she could get permanent residence status through her daughter who is born in Australia.

    n.She wanted to leave her daughter with her grandmother and her mother but her dreams were shattered. She was beaten, sexually assaulted and unreasonably detained and imprisoned because of her father's involvement in Khalistan and his acts against the Hindus and Hindu religion. The Hindu police officers were the cause for her father's and mother's death.  They harmed her for marrying a Hindu and also for her parents' involvement in Khalistan and for creating a rift between the Hindu and Sikh community.

    o.She could not seek help from the police who are controlled by the Hindu majority government authorities who hate supporters of Khalistan and Sikhs marrying Hindus. She cannot expect the officers to help her in any part of India. She cannot move to any other part of the country as the police have control all over India and when the police are the perpetrators, how can she move anywhere else in India. Even if she lives in any other part the locals will find her and inform the police and she will face the same consequence. The police ordered that she should separate from her husband and not to file case against them.  They will not hesitate to kill her if she goes back and lives in another part of India.  The police fear she will file a case against her parents’ murder and will hurt her for marrying a Hindu and force her to separate from her husband.

    p.The authorities will never protect her but will burn her alive as they did to her mother in 2013. She will be held in prison and sexually assaulted as they did to her mother.

    q.She cannot relocate within the country as the police officers will find her through the locals and will also fear that she could file a case against her mother's and father's death. India is a secular country where the police have their intelligence to search for the terrorists and victims of violence. Her family is branded as terrorists and the police murdered her father and mother so it is dangerous for her to live in or relocate to another part of India.

11. She submitted copies of the following documents with the application:

    -     A certificate that ‘[Mr A]’ was arrested on [date]/5/1984 under ‘4/5 Exp. Act’, in [Jail], and released on [date]/5/1985.

    -     A leaflet announcing a Tribute in February 1992 in Patiala to ‘[Mr B]’ and ‘six other soldiers’ who had sacrificed their lives for the Sikh society.

    -     The applicant’s school record showing her father’s name as ‘[Mr A]’.

    -     The applicant’s husband’s school record showing his father’s name as ‘[deleted]’.

    Departmental Interview

12. The following is a summary of the information provided by the applicant in her Department interview on 27 April 2017:

    a.The applicant asked for a female interpreter instead of the male interpreter provided. The delegate responded that this was not necessary. The delegate acknowledged that the applicant had been prescribed and is taking the medication Zoloft.

    b.The applicant does not know when her father was found, before the Golden Temple attack in June 1984, to be a terrorist.  Her grandmother, mother and sister told her it had happened.  Her sister did not tell her.  She was not born at the time.

    c.She was only able to obtain the arrest and release certificate regarding her father. The Tribute program leaflet was about a tribute held after her father’s death.

    d.The delegate put to the applicant that contrary to country information that Indian forces cracked down in Sikhs in the late 1980s her father seemed to have escaped all this and was not killed until 1990. The applicant agreed.  She does not know the date her father passed away as she was too young. She was born in [year].  In about 1990 her father was killed in a false encounter.

    e.She was about [age] years old when she started living with her aunt. The Delegate put to her that in her application form she wrote she lived at one address for the first ten years of her life.  The applicant responded she first lived with her aunt.  She was too young to know where she lived.  She went to a school in [location].  After this her aunt took her away.  She was between [age range] at the time.

    f.She does not know why her mother warned her the police would abduct her if she stayed at her mother’s home.  She wanted to remain with her mother.

    g.Subsequently she came to know that those people who killed her father were known by her mother. Her mother had a list of their names.  There was a general thing going on and people knew who were abducting others.

    h.She met her husband in 2007.  After she married her husband in October 2008 her mother ordered her to leave India.  The delegate put to her that she was preparing to leave prior to this as she had already arranged and sat her IELTS test, prior to August 2008.  

    i.The money for her study in and travel to Australia came from her husband’s family and her mother’s parent as her mother had no money.  The delegate put to the applicant that when she was interviewed recently by the status resolution section of the department she stated she had $70,000 - $80,000 saved in a bank account in India for her study.  Her husband responded that this was from his parents’ property.

    j.Her parents left her property but her uncle has taken it over.

    k.The delegate put to the applicant that she sent her daughter to India for several months when her daughter was just a few months old. The applicant responded that her mother-in-law accompanied her daughter.  Her father-in-law was ill and they thought he would pass away and they wanted him to meet his granddaughter.  Her mother-in-law promised to return to Australia with her daughter but she didn’t.  After a few months the applicant made enough money to go to India to get her daughter and bring her back to Australia.

    l.The delegate put to the applicant that she had spoken of her parents-in-law being alive still in 2015, so why would she attend her father-in-law’s funeral in 2013.  She said it was a mistake in the record in those later interviews.  She said ‘in-laws’ meant her mother-in-law and siblings-in-law.

    m.The applicant was arrested at her father-in-law’s funeral in 2013.  There were about 200-250 people at the funeral.  The police came, about five of them. They dragged her away by her hair.  At the time maybe only 40-50 people were still there.  She does not know how they reacted.

    n.At [City 1] police station she does not know what they intended to charge her with.  They tied cloth around her mouth.  She was detained there from [date] February to [date] February.  She was not charged with anything.  The police suspected that the things her mother knew she also knew, regarding her father’s death.  The issue is still not resolved.  Her mother lived in hiding.

    o.During the two weeks she was detained her husband tried to find out where she had been taken. Then he asked a neighbour who worked with the police who told him she was in [City 1].  He and her mother went there but the police kept her mother.  There was a government minister there and her husband got the minister’s letter of recommendation and gave 5 lakh rupee so that the applicant was released.

    p.Her mother was burned to death the day after the applicant’s release. They received a phone call from someone in a neighbouring village.  The applicant then asked the delegate for her husband and interpreter to leave the interview room. The applicant continued in English.  She asked the delegate not to ask her about the sexual assault in the police station in front of her husband.  The delegate asked her to confirm she had been sexually assaulted in the police station and she did.  She was crying in the delegate’s interview but explained that she could not shed tears because of the Zoloft. The delegate assured her he would not ask her any more about this and her husband and interpreter then came back into the room.

    q.Her neighbours did not try to help her mother when she was burned because they were too scared.  Her mother was attacked 23 years after her father’s death because the police did not know where she was living.  When her mother visited the applicant in the police station they detained her too.

    r.Her mother constantly told her not to come to India as they would kill her. Her father was respected in the Sikh community, but when the applicant married a Hindu the people turned against her.

    s.Her father was killed. Her mother then lived in hiding in a village.  Her aunt lives at house number [deleted], the same address as her father-in-law.  They lived nearby at an address not shown on the documents.  Her father-in-law lives at her husband’s address.

    t.At her status resolution interviews she did not mention any fears of returning to India because she did not want her daughter to know about these things.  At the time they had engaged an agent, [name], and told him some of the story but he told them the other case was enough.

    u.The delegate put to the applicant that she did not apply for protection until 2016, after all her other visa applications had been refused and her ministerial request was refused. She responded that she had tried her best to avoid applying for protection.  Her agent advised her not to tell these things.

    v.She cannot go back to India as they will kill her. When her father died, his nails had been removed.  Her mother knew the risk. She was aware of the people who took him from his home.  She tried to find him.  She went to the court.  The whole Punjab knows who did this.

    w.The applicant remained in India for several days after her mother’s death as they were not able to buy a return ticket to Australia sooner.  They spent time with their relatives.  She did not attend her mother’s funeral.  The house the applicant was in was not burned.  Only her mother was burned. The applicant has no proof of her mother’s death because on the day after some police went to her husband’s home and said if the applicant lives there they will take her and that he and the applicant should leave as soon as possible.

    x.She could not live anywhere else because all the people in Punjab know about her and in India the police can find someone easily. 

    Post-Interview Submission

1. Following the interview the applicant submitted copies of the following documents:

   -     The applicant’s Indian Marriage Certificate showing her marriage in October 2008. The certificate records her father as deceased.

   -     Medical reports showing that the applicant is being treated for anxiety and depression and suffers from Post-Traumatic Stress Disorder. 

   -     A psychological report from a clinical psychotherapist at STARTTS dated [May] 2017 stating that the applicant has symptoms of PTSD, anxiety and depression. The psychotherapist refers to the applicant’s history as having experienced “early childhood laceration of face, father killed when she was one, mother burned alive”.

   -     Further Indian police and court documents relating to ‘[Mr A]’.

   -     A statement dated 24 August 1992 by the applicant’s father’s father, [Mr D], stating that his son, [Mr A], died on [date] October 1991 and his death is not recorded and he is applying to obtain a Death Certificate.

   -     Photographs of a Sikh man in a coffin.

   -     The Death Certificate for the applicant’s husband’s father, dated in February 2013.

   -     An undated letter from a village Sarpanch of [Village 1], regarding the applicant’s mother’s life and death by being burned by men in police uniform on [date] February 2013, with a translation dated 5 May 2017.

   -     An email from the applicant describing the difficulties she had during the department interview, her concerns about the interpreting quality, and further explanations of her evidence.

   Delegate’s Decision

2. The delegate did not find any of the applicant’s claims credible. He did not find the applicant's account of her early life or her father's life to be credible. As part of his adverse credibility concerns the delegate referred to his difficulty accepting the applicant would be arrested at her father-in-law’s funeral in front of others. The delegate was not satisfied the applicant had a well-founded fear of persecution in India, or that she was owed complementary protection.

   Information to the Tribunal

   Pre-Hearing Submissions

3. On 12 January 2023 the applicant’s representative provided a written submission to the Tribunal stating that the applicant has been assessed as having ‘clinically significant PTSD’ and is on medication for anxiety and depression. He requested that she give evidence at a hearing without the presence of her husband who does not know details of her experiences. The representative confirmed that the applicant’s daughter, born in 2011, had acquired Australian citizenship on [date] April 2021.  The representative provided reasons why the delegate’s decision was wrong. The representative submitted that the applicant is a highly credible witness who readily meets the criteria for the grant of a Protection visa.  He attached copies of the following materials:

   -  An NCAT review application form.

   -  The applicant’s medical record, dated [January] 2023, showing that her current medication includes 100mg of Zoloft.

   -  The Australian Citizenship Certificate for the applicant’s daughter.

4. On 13 January 2023 the applicant submitted a Statutory Declaration in which the following is written:

   I was born on [date] at [Town 1], Patiala, Punjab, India. I am married to [my husband]. He is Hindu and I am Sikh. We have one daughter[who] is 11 years old. She is an Australian citizen.

   The information in the statement lodged with the application was written by the solicitor and migration agent, [named]. He told me that my story was not believable and Immigration is not going to accept it. The general information is the same, but he changed the details. For example, I have never been to [City 1]. I was not arrested at my father-in-law’s funeral. He told me not to dare speak English in the immigration interview and not to get away from the story. He told me anyone who speaks English in the interview gets rejected. I think not speaking English directly affected my ability to communicate with the immigration officer. I could detect a lot of mistakes by the interpreter.

   My father was a freedom fighter opposing the government of India. There were riots in Dehli in which Sikhs were killed by Hindus and the government did not do enough to intervene.

   My father was killed by Indian government security forces in about 1992. His death was not officially acknowledged by the government. He was imprisoned at the time of his murder. The government never issued a death certificate. The government claimed he had escaped from the prison and had disappeared.

   His body was dumped in a field. It was found three days after he was murdered. His face was tortured. My grandmother told me about this. There are photos of his dead body. His body was cremated.

   The family claimed that I was the daughter of my paternal uncle, in order to try and protect me from any retribution from the security forces.

   My school teacher’s son was killed by the government.

   I came to Australia in April 2009 with the intention of studying a diploma and bachelor degree and obtaining permanent residency. I was advised by a migration agent this was possible.

   In [2011], I was blessed with a baby [girl]. In July 2011, my mother-in-law came to help me with the baby because I was studying full-time and working part-time. My mother-in-law wanted to take [my daughter] to India, which I could not [bear]. But she was forceful and with my husband’s agreement, she took my daughter to India as my father-in-law was very sick and he wanted to see [my daughter] before his death.

   In about December 2011, my mother-in-law took my daughter back to India. I was emotionally devastated and just the mention of her name made me cry. She was meant to bring her back to Australia. It turned out that she wanted to keep my daughter. She claimed she did not like Australia and did not want to come here again. She did not bring my daughter back, despite my requests. I had to go to India in April 2012 to get my daughter back. My brother-in-law came and picked me up from the airport and took me to my in-law’s house. They lived in the same city as I had previously, but in a different area. My mother-in-law told me that she wanted my daughter to stay in India and be brought up in Indian culture. She was resisting me taking my daughter back to Australia. She was reluctant to give me my daughter’s passport. I had to negotiate with my mother-in-law by myself, as my husband had to stay in Australia and was working. After I got the passport, I had to go and buy a ticket for my daughter. I stayed there for about one month until all this could be resolved and my mother-in-law agreed for my daughter to come here.

   In February 2013, my husband, daughter and I went to India because my father-in-law died in hospital and we went for the funeral and cremation ceremony. I spent about the first two weeks in the funeral rituals at Patiala.

   I asked my aunt to help me to find my mother. She asked some relatives and found out where she was. She was living in a Sikh temple at [a] small village. I was told she was mentally unwell.

   After the funeral was over, I asked my brother-in-law to take me to see her.

   After driving through agricultural lands, we went to the village. I was able to find her. She had dirty hair and old clothes. I recognised her from a wedding photo. We both cried and embraced. She told me I should not be here. I told her about my little daughter and showed her the photos. She smiled and put her hand on my head and told me to be blessed and happy. Some men wearing a turban came into the house. I heard someone saying, that is a terrorist’s wife. They dragged my mum and I out of the house where we had met and forced us into a vehicle. My brother-in-law was outside sitting in his car, but he was unable to stop them. After a long drive, we were taken to a building and taken inside and placed in a dark room.

   My mother told me these men think that my father is still alive, living in Pakistan and operating from there. Men came into the room and wanted to know where my father was. They beat my mum and I just to weaken us. One of them grabbed me by the hair and tore off my clothes. They raped me, one by one. There were six of them. They swore at us, yelled at us and beat us.

   I find these events very difficult to talk about. I remember being in pain. I do not remember everything that happened. I just remember what was happening to me.

   My husband and his family have some political contacts and the person who organised our release was paid money. We were taken in a vehicle to another place, where we were released and I was taken into a vehicle with my mother-in-law and husband. My husband told me that we were released from [location].

   My mum was released at the same time, but she was not with me in the car taking me to my mother-in-law’s house. I assume she went to her home, or someone helped her to go home. The next day, I found out that she had been killed and I asked someone to take me to her village. I had to rush there. I was told by everyone around me not to go. How could I not go to see my mother if she was killed? I went with my brother-in law. When I got there, I was told that some men had poured oil on her on the day she got back to the village and she was burned alive. Everyone knew it was the police, but none of the witnesses dare say that officially. I saw her dead body, which had shrunk to two or three feet. I could not perform the funeral rituals. The villagers told me to leave the village. I went back to my mother-in-law’s house and left her body there.

   After about two days, we packed everything and were driven to Dehli and stayed in a Sikh temple. We could not go to a hotel because we did not want to leave a trail for anyone to find us. I was afraid the security forces would find us. We stayed in Dehli for about four to five days before taking the flight to Sydney. We tried to get an earlier flight but it was not available.

   I told my husband that I am never going back there again. I did not tell my husband all the details of what happened to me. We buried that a long time ago. He buried it under his work and I buried it under medication. We just look at our daughter and get on with our life. We tried to have another child for the past couple of years, but I could not conceive.

   I have been seeing a psychiatrist, but have been looking for a new one who can better help me. I went to psychologists, but they could not continue seeing me without a psychiatrist because of my condition. I have been taking Zoloft (100mg) since 2017 because which I have been diagnosed for mental health problems and post-traumatic stress disorder.

   The doctor increased it to 100mg. At one stage the doctor increased it to 200mg but the side effects were too great and it was reduced to 100mg. I have trouble with depression and concentration and this affects my work. I have lost my job [several] times because of my anxiety and I could not cope with the work. I lost my job with [named workplace]; and with [another employer].

   I had a 485 visa and intended to apply for a skilled migration visa. However, I could not achieve a result of 7.0 in all components, which was a requirement [to] give a skills assessment for the permanent visa. The post-traumatic stress disorder had a huge impact on my studies and ability to get 7 in IELTS. I sat more than 30 IELTS tests over 18 months and failed again and again.

   I never wanted to apply for a protection visa. I thought I was capable enough to study and get a visa with my abilities. I only applied when there was no other option and I was facing being sent back to India.

   I never want to set foot in India.

5. On 18 January 2023 the applicant’s representative provided a Statutory Declaration from the applicant’s husband in which the following is written:

   I was born on [date] [in] Punjab, India.

   I am married to [the applicant]. Even though I am Hindu, my parents used the name “Singh” for me when I was going to school, to avoid retribution against Hindus. There was one incident when the Sikhs killed all the Hindu boys in a village and my parents were afraid of what would happen to me.

   In February 2013, we went to India after my father's death.

   After the funeral ceremonies and rituals, so about 15 to 20 days into the visit, my wife went to see her mother in the village of [name]. She was taken there by my older brother in his car. She was kidnapped with her mother by some policemen. He told me he tried to stop them but there were five or six men and he could not stop them. He told me they were police guys. He went to the headman of the village and gave him his number, asking him to inform him if they come back.

   When my brother called me over the phone and told me about the situation, I went to meet him at the police station near that village. We, along with some of my friends and my cousins, all started to inquire to the closest police stations in Rajpura, but nobody was willing to help us and kept on saying they have no information about this.

   My elder brother’s friend told me to go and seek help from a local politician, [Official 1]. My mother, brother, one of his friends who worked in the police and I first went to his office in [location], but they told me he was in another place that day in [location]. His administrator agreed to let us see him in return for a small fee. After listening to our situation, he decided to help us in return for payment of 500,000 rupees. We agreed to his conditions. My mother went to the bank and got the money and we went back to pay him.

   After four to five days, they succeeded in locating my wife and her mother. They refused to say where they were kept, but they were able to organise her release at [location]. My mother, the administrator from the member of parliament’s office, my brother, his friend and I all went to get [my wife] and her mum in cars which were organised by my brother's friend.

   We went to the agreed spot and we waited there for approximately 1½ hours before they came in a police 4-wheel drive. I recognised it as a police car because it had “POLICE” written on the windscreen and only the government have these types of cars. My wife came out all bruised and swollen. They brought her mother with her as well who was taken to the village by one of our relatives, who dropped her in a Sikh temple and then came back.

   The next day, we got a news of my mother-in-law’s death. The headman of the village called my brother. I tried to keep that information from [my wife], thinking that she is already devastated and the last thing she needs is this information, but somehow she heard us and then she went crazy and kept on saying that she just want to see her mum. Even after we all tried to stop her, but understanding her emotions that she just wanted to see her mum for one last time, my brother took her to the village so that she can pay her respects to her mum. She agreed to look at her mum and when she came back, she was hell bent on packing everything up and leaving immediately.

   My brother’s friend, who is [an officer] in [a] police station, told us to go to the safe location as soon as possible as well, as the dust had not yet settled. We realised that our return ticket had some time and we had to go.  We had five to six days until we could board the plane, so we all went to Delhi with the help of a friend and we stayed there in a Sikh temple.

   We tried our best to get the tickets changed and leave the country earlier, but unfortunately we could not get a booking. Finally in beginning of March, we came back to Australia.

   When we came back, it was really very hard because of [my wife]’s trauma. It affected my daughter and I. My daughter was alone without having a sibling. She even asked me if we can adopt another child. There were so many things we missed out because of that trauma, like having another child.

   [My wife] tried to get the IELTS score and apply for permanent residence, wishing never to go back to India, but due to the trauma and suffering she felt she was unable to concentrate on her education and unable to score the desired result for her permanent residency at that time. She was taking Zoloft medicine to combat her PTSD.

   [My wife] and I have not been back to India. We are not going to India. I am scared after what happened to [my wife] and her mother. Even if I get permanent residence, I cannot go there. My brother’s son was born in 2014 and I did not go to see him in person all this time because I am too scared. There were so many events I have missed in India that I should have attended: for example, my grandmother, uncle and aunt passed away and I could not go there for their funerals; while my nephews and cousins got married.

   Tribunal Hearing, 20 January 2023

6. The applicant appeared before the Tribunal on 20 January 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s husband. 

7. The following is a summary of the information provided by the applicant at the hearing:

   a.She has no brothers and sisters.

   b.She and her husband married [in] October 2008.  Her husband’s family live in Patiala, close to each other’s houses.  They are in the suburb [deleted]. The applicant is from [Town 1].

   c.Her husband’s family’s religion is Hindu. They are Brahmin upper-caste, middle class and of moderate wealth.

   d.The applicant’s daughter attends a Christian school in Sydney. Neither the applicant nor her husband follow any religious rules. They share their beliefs with their daughter but she is influenced from what she learns at school mostly.

   e.The applicant and her husband had a love marriage. It was not arranged.  The applicant studied in a college in Patiala.  Her husband saw her one day when he was actually engaged to someone else. He said about the applicant, this is the girl he wanted in his life and he broke his engagement. He started chasing the applicant. She was in a rickshaw and he was behind her on his bike. The applicant told him her family was very strict.  He said it doesn’t matter he will fix everything.  The applicant’s uncle and aunt were not supportive but her mother-in-law was. The applicant and her husband went around the Gurdwara four times and that was it.  Her mother-in-law worried about the applicant’s aunt.  There are strong men, the Nihang, in Gurdwaras and the applicant’s aunt threatened her with them. Two of the strong men came on horses with scimitars and some in cars and the applicant and her husband had to run away. The applicant’s mother-in-law is upper middle class so she was able to organise protection with a big jeep to help protect the applicant and her husband. They got married in 15 minutes then ran back home.  The applicant then lived with her mother-in-law.

   f.The applicant’s aunt and uncle do talk to her now over the phone but they won’t talk to her daughter or husband. They never her visit in-laws.  They just say hello on the phone to her and that is it. They don’t accept the marriage because her husband is a Hindu given what her father did for the Sikh religion. They think she has just spat on his face.

   g.The Tribunal put to the applicant that her husband had described his religion as Shiv Sena, which can be considered anti-Sikh.  The applicant responded that in Sikhism there are Nihang and in Hinduism it is Shiv Sena, which is like a mafia.  They operate under a religious name but they are just goons.  Her husband was part of that but they have taught a lot to each other.  They both thought their religion is superior, then they talked about flaws in both and understand now that religion is nothing, just a way to divide people.  Neither of them practise their religion anymore.  They don’t attend temples or gurdwaras.  They do some festivals at home.  The applicant just wakes up and prays to the lord for well-being, that is all.  After her mother’s death and her father-in-law’s death they both were quite anti-religious when they came back to Australia.

   h.They did not spend much time in India after their marriage.  Her uncles and aunts did what they could against them via the Nihang.  Her husband’s family kept sending them to homes of their different relatives.  They would spend 15 days in one place then 15 in another so they kept moving until the visas were granted in April 2009. The applicant’s relatives forsook her.  She and her husband did not stay with her mother-in-law because it was not safe as everyone knew where they lived.  It was not safe from Shiv Sena who were angry her husband married an enemy’s daughter, or from the Nihang.  The applicant cannot remember any other incidents occurring before their departure.

   i.The Tribunal put to the applicant that country information indicated that Hindu-Sikh marriages did occur in India. The applicant responded that the problem arose because her father was a member of [Group 1] and her husband was part of Shiv Sena.  But she is not sure he was even Shiv Sena. It was because he married someone known as an enemy of the country.  There have been lots of outcast killings, like honour killings.

   j.The applicant declared that her father was deceased in her Student visa application. She doesn’t know when her father was born or how old he was when he died.

   k.The Tribunal asked who ‘[Mr B]’ was, a person mentioned in her initial statement.  The applicant responded that is her father. 

   l.The Tribunal put to the applicant that it had located further information about her father being killed and considered a martyr as she had described and that it accepted this had happened.

   m.She is not sure when her father was arrested.  He was convicted but she is not sure what he was convicted of.  She heard stories from her grandparents about what happened. They told her their version of how her father was also kidnapped from their home at night. The police just surrounded the house with blazing lights. The police went to other houses and said if [Mr A] doesn’t surrender the people will die so her father had to come out. He had [sisters], one was unmarried. They grabbed his unmarried sister by her hair and pulled her down. They dragged her father by his hair too.  The police took his sister as well as the applicant’s father. She was also tortured along with the applicant’s father. The police write whatever they write.

   n.The applicant doesn’t remember when her father was released from the police. He was in and out of detention.  Sometimes her father is called [alias] because every person has two names, a birth name and like a nickname. The applicant’s other name is ‘[name]’.  Her father’s other name was ‘[alias]’.

   o.The applicant’s mother always told the applicant she didn’t know anything. The applicant’s grandparents always said her father was innocent.  He was with [Group 1]. The applicant was receiving help from [Group 1] after her father’s death.  They paid her school fees and sometimes sent a little food help or something.  Her father’s friends who survived went to [Country 1] and other countries but they still pay regard to the ones who lost their lives.  They helped the applicant through her grandparents.  Her grandparents are no longer alive.

   p.The applicant’s father had [brothers], [sisters] and a half-brother.  His half-brother has passed away.  The applicant has contact with her paternal uncles because her father is dead and had no sons so they feel there is a prospect to get her father’s properties.  They call the applicant from time to time.

   q.Even though her father was killed by police the police never admitted he was killed.  The police would come to her father’s home and harass them.  So her father’s little sister got married in a hurry to get her out of the home.  The police would come and grab whatever they could and keep asking where is [Mr A].  Her mother took the applicant with her and they went to live in her mother’s home town, [Village 1].  They stayed there for about two years. 

   r.During the two years in her mother’s village there were lots of Sikh groups. Her mother followed Radha Swami and would go to the dera there. The applicant doesn’t remember much but she has flashbacks. She was very little and remembers her mother and her nephew Toli and herself.  They went to the Radha Swami camp and prayed together.  She was on her brother’s lap, no her cousin’s lap.  Her brother put her with her mother.  Her brother then went to the boys’ side and she went to the girls’ side.  She was in her mother’s apron and they were going to catch a bus in some little streets.  Someone attacked her mother and the applicant got hit and her skin was hanging on the attacker’s rod. The applicant remembers her mother seeking help and a house took them in.  The applicant has a scar from the sutures her mother did using a needle and thread.

   s.After two years the applicant’s paternal uncle and aunt took her back because of that incident.  They knew the applicant was not safe in her mother’s village. Her mother then pretended to be a mad person in her village.

   t.The applicant was then raised by her paternal uncle and his wife.  They had three children.  Her mother stayed in her village.  Her mother did not go with the applicant as that would put the applicant’s safety in jeopardy.  Her mother was at risk because she was the applicant’s father’s wife.  The authorities never admitted to her father’s death and thought he still had connections to the applicant and her mother. They ask does he come, where is he.  The Tribunal put to the applicant that it did not seem to make sense the police would kill her father but continue to ask where he was.  The applicant responded it did not make sense to her either.  The police never made a statement. There is nothing in their systems that he had died. Her grandfather even went to court to request her father’s death certificate but could not obtain it.  However the police knew her father was dead.

   u.The applicant lived [in Town 1], Patiala. This is where her grandparents lived.  It was one house but divided into separate homes for family members.

   v.The applicant had no more contact with her mother while growing up.  She was too young and didn’t know who to ask.  She was not able to talk with other children about her mother.  When she said to her aunt she wanted her mother her aunt would respond where would she get her mother from, go find her in the cemetery. Her aunt and uncle did not treat the applicant as well as their children.  The applicant was angry the whole time.  She didn’t understand why everyone had a mother and father but she didn’t.

   w.The applicant did not have any news of her mother while growing up because nobody talked about her.  Her mother’s siblings broke all contact with the applicant, perhaps because her paternal family did not want ties with them.

   x.The Tribunal asked the applicant if she had any other problems during her childhood and she responded not that she could think of.  She put all her sadness and anger into getting an education as a way out.  Her mother was known as a mad woman.  Whenever the applicant made a mistake they would say she was mad like her mum.  Everyone in her mother’s village knew her mother as a mad woman.  Her uncle also.  So the applicant just studied and studied. 

   y.People would say the applicant’s father supports terrorism and he is a bad person so she is also a bad person.

   z.Her mother’s village was in the Rajpura surrounds, not in Patiala. 

   aa.While the applicant was with her aunts and uncles the police would come and ask them about their brother, her father.  The applicant’s father’s half-brother was a police informant so when her father was executed his half-brother was given a job in the police.

   bb.The applicant did not have any problems in India when she returned to collect her child from her mother-in-law in 2012.  She just went home and stayed there. She stayed for one month and didn’t do much. She told her father-in-law and brother-in-law about her family problems. She didn’t ask about her mother as everything was about her daughter then.  She was angry at her father and mother at the time.  She didn’t want anything to do with them.  When her mother-in-law took her daughter away, she had a strong emotion and questioned why her mother did not come back for her.  Her mother must have had a big reason.  The applicant wondered about her mother’s situation, so her anger turned to curiosity.  This was during her 2012 return.   She asked her uncle about her mother but they didn’t tell her. The applicant didn’t know where her mother was.

   cc.The Tribunal put to the applicant that she had said she knew her mother was in her village.  She responded that she didn’t know where her mother’s village was.  The applicant then said she did know but could not go anywhere. She had the word for [Village 1] but she didn’t know geographically where it was.  Her priority at the time was to bring her daughter back to Australia.

   dd.When she returned to India in 2013 her husband did not go with her to meet her mother after the funeral.  He wasn’t interested in her family.  He was like ‘she is your mum, you go’.

   ee.The applicant’s husband has one sibling, his [brother].

   ff.The Tribunal asked the applicant where in her village her mother was when they met.  The applicant responded that she knew where her mother was. The first 10 days they spent in funeral rituals.  Approximately 15 to 20 days after she arrived she and her brother-in-law went to find her mother. The applicant wanted to tell her mother she had a daughter and to understand her.  Growing up the applicant heard her mother was a mad woman and the applicant would be mad like her.  The applicant felt shameful. The applicant wanted to tell her mother she was no longer shamed and angry at her mother, and that she understood her point of view and how hard it was for her to send the applicant away.

   gg.The Tribunal again asked where in the village her mother was and the applicant responded that she didn’t know. The applicant just met her mother at someone’s house. There was a field and a house tilted to the road with a big gate.  The applicant knocked and a woman opened the door.  The applicant introduced herself and told the woman her family home and her grandparents’ names.  The woman welcomed her and the applicant asked her about the applicant’s mother. The woman said everyone knows her mother, she is in a poor condition so there is no use for the applicant to see her.  The applicant convinced the woman to let her see her mother.  Her mother lived in a temple so the old woman went to the temple and brought the applicant’s mother back. Her mother’s clothes were dirty and her hair all messed up. The applicant looked at her and hugged her and cried.  Her mother just looked at the applicant. The applicant said I am [name], how are you. Her mother said who [name]. The applicant said I am your daughter and her mother said I don’t have any daughter. The applicant showed her mother pictures of her daughter. The old lady went to make tea. The applicant sat on the bed with her mother and showed her the applicant’s daughter and said I’m a mum. Her mother slapped the applicant on her face and was angry and said what are you doing, why are you here.  The applicant said why did you leave me, you didn’t come look for me.  She said you shouldn’t have been here. Then tea came.  By the time the tea came they heard 4, 5, or 6 people jamming in and saying hey. The villagers gathered and said that is the terrorist daughter and wife. Men in turbans came in and took the applicant and her mother. The men put a cloth around their faces, dragged them, and loaded them like potatoes into a jeep.

   hh.Her brother-in-law was in the car.  When he saw he tried to stop it.  He went towards them and said what are you doing.  Then he called the applicant’s husband.

   ii.The men were wearing Sikh turbans.  Her mother had been with her for just 10 or 15 minutes before the men arrived. 

   jj.Her mother kept saying you stupid, stupid child, why did you come here, why not leave things alone.

   kk.The men did not say anything to the applicant or her mother.  They just said we got them, we got them.  The men drove the applicant and her mother somewhere. When the cloth was removed they were in a room which was very dusty with no windows. Her mother was there and one turbaned guy.  No one spoke to the applicant but they said to her mother, enough, we know you are not mad anymore, how long are you going to keep that up.  Her mother said I don’t know what you are talking about. They said we know what’s happening, that’s your daughter isn’t it.  Her mother said yeah I don’t know how she found me. They said then you are done, if you can recognise her you can recognise anything, stop pretending.  They asked her mother where is [Mr A], where is he, is he in Pakistan, what are his plans, what are you doing. Her mother said I don’t know and the man used his boot to kick her in the face. She started bleeding. Two turbanned men walked in. They were asking the same question.

   ll.They mostly asked questions of the applicant’s mother, not the applicant.  They used the applicant against her mother and accused her of lying and trying to protect the applicant. They asked who are your contacts, what are you hiding. They said the applicant and her mother made their country bad, this is what you do to your country.

   mm.The men kept the applicant and her mother for maybe a week or so.  Over the week the men would come and question them then leave for some time.  There were different men, usually 5 or 6. The questions were always about the applicant’s father.  They showed her mother photos of people and asked her about them.  They said nothing to the applicant.  Her mother kept saying no.  Then on the third or fourth day they said to the applicant what do you know. The applicant said nothing. They said you are a lying bitch, this is what you do to this country.  She doesn’t remember their clothes but she remembers the men’s smell, like a sewer.  The applicant doesn’t remember much. The most traumatic part was when they asked her mother something.  The applicant was wearing an Indian dress, and a guy came and pushed her from the back of my head.

   nn.They were kept in the dusty room the whole time.  They were not given any food, just water.  They would go to the toilet in the same room.  The Tribunal asked why the men would keep them in such conditions in a room they would have to also frequent. The applicant responded that the men would come just once or twice a day. While being kept in the room the applicant asked her mother what happened. She just cursed the applicant and said couldn’t you leave the fuck alone. Get out and never look back.

   oo.After one week a lady came in and put cloths on the applicant’s and her mother’s face and tied their hands. She kicked the applicant’s leg and pushed her into a car.  She took the applicant and her mother out and put them in a car.  A guy was behind and one was with them in the front driving. The woman did not drive with them. Then the applicant was dragged by her hands and the cloth removed.  She saw her husband and others. She opened the car door and saw her mother-in-law there and she fell down and put her head in her mother-in-law’s lap and cried.  Her mother-in-law told the applicant it’s okay and stroked her and said she was safe. 

   pp.The Tribunal asked the applicant if she had any injuries and the applicant responded she had facial injuries because they kicked her face with a boot, and on her side and near her private areas.

   qq.After their release the applicant went to her mother-in-law’s house. She was not in her senses.  She was there for one day.  She went to her mother’s place the next day.  Her husband told her mother-in-law that the applicant’s mother was no more.  She was injured a lot and not feeling good and she passed away. The applicant said that’s not true, she is fine could she please see her mother for the last time. She convinced them and her brother-in-law to take her back to her mother’s village. Her husband didn’t go with her. She doesn’t know why.

   rr.At the village the applicant entered a different house where lots of people had collected.  Her brother-in-law knew where he had to go.  They went in the house and saw her mother. People said when her mother was set on fire she stood and didn’t cry.  The villagers said another turban man set on her fire.  They know they were police because of the jeep and the car they drive. The jeep came up and one of them put oil on her mother.  The applicant didn’t do final rituals as her brother-in-law said that is enough, let’s go and they went home. The applicant returned to her husband. 

   ss.They then went to Delhi to a Sikh temple.  The applicant doesn’t know why they went there. They tried to change their plane tickets.

   tt.She thinks it was police who did all this to her and her mother because the police have always gone to her home checking about her father and his whereabouts. All the time the vehicles were registered and had police written on them. Her brother-in-law, husband and the villagers said this.  She doesn’t know why the men were not in uniform.

   uu.The Tribunal asked the applicant why the police would abduct her mother. She responded that according to the villagers the police have been trying to “suss” the applicant’s mother. Her mother had been in and out of police remand.  She was told her mother lost her mind after her husband’s death. It was not until she recognised the applicant that the police realised she was pretending. The applicant doesn’t know how the police knew but it happened “superfast”.

   vv.The Tribunal asked the applicant why the police would expend so much effort and resources on her and her mother.  The applicant responded that they think there is an uprising and her father and people like him are responsible.  The Tribunal put to the applicant that it would seem unlikely she and her mother would be of any assistance to the police. The applicant responded it was not just her they were interested in.

   ww.The applicant does not know what role her father had, he was a freedom fighter.  [Group 1] still pay tribute to him.

1. The following is a summary of the information provided by the applicant’s husband at the hearing:

   a.He met the applicant in college. They married in 2009.  It was a little bit of an issue in his family because she is Sikh.  It was also an inter-caste marriage. It was a little problem but not too much and it was fine.

   b.His wife did not have many family.  She lived with her cousins. They had issues with him and his family because of his caste but once the families met it was okay.  When his family went to see her family they sat together and everything was sorted out and they agreed he and the applicant could get married.

   c.They married in the Gurdwara.  From the applicant’s side it was just her brother and brother’s wife and their kids and an aunty who arranged the ceremony.  It was not big. There were just nine or ten from his side and five or six from her side.  Her brother’s name is [Brother 1].  He has not had any more contact with [Brother 1].  The aunt who helped arranged the ceremony was the applicant’s father’s sister.

   d.The applicant lived with her cousin.  This was [Brother 1].  He is known as cousin or brother. He is the son of [her father’s brother].

   e.There was a little problem during their wedding ceremony.  There were some little fights because he is Hindu and the others are Sikhs. There are lots of local communities against that, especially because the applicant’s father did a lot.  So they tried to stop the wedding.  There was a fight. One of her uncles and his friends did this. The applicant’s husband was in a separate car.  His brother and friend and cousin were attacked in their car with a rock and sticks and knives.  They ran and the family sought help from the police. Then they reached the Gurdwara and the ceremony took place without any more problem.

   f.It was not the applicant’s real uncle who was involved in the attack but a man known to her father, like a father’s friend.

   g.They did not really have any more difficulty before they came to Australia. They applied for a visa because it was hard for them to live in India. They stayed with one of his cousins and would sometimes go to a friend’s or another relative’s house.  It was hard for them to live in one place.  They didn’t want to bring problems to anyone. They were trying to be in hiding. They went to Delhi soon after their marriage. 

   h.The applicant’s uncles in the Sikh community are against them because of what the applicant’s father did for the community. From 1982 to 1985 the Sikhs wanted their own state.  More than 200,000 were killed in those years.  The applicant’s father fought with them against the Indian government. He was a part of the threat movement.

   i.Just the applicant went back to India in 2012.

   j.He went back with the applicant in 2013. About 15 to 20 days after their arrival the problem happened to the applicant. She went to see her mother.  He didn’t want her to as it might be a problem.  She went there with his brother.

   k.He didn’t know much about the applicant’s mother.  All he knows is that the wedding arrangements were made by one of her aunts the applicant didn’t see her mother.

   l.He didn’t want the applicant to see her mother because the situation was not very good.  Her mother was also in hiding because of the police as she was scared the police would chase her and ask her something.  This was because of the applicant’s father. The applicant told him so many times. Because they did not receive any death certificate for her father the police think he is still alive and give them a hard time.  They come in turn and keep asking where is her father.  He was scared the police would start doing this again.  He knows this because the applicant’s uncle mentioned it many times.  This was the applicant’s father’s elder [brother].  They didn’t talk together much but the applicant’s husband spoke with his son many times.  This was because he and the applicant were living with the son and he was the one who arranged and did all the work for their marriage ceremony.  He was the main person they were in touch with.

   m.His brother called him to tell him 5-6 guys took the applicant.  He tried to make a call and a cousin/friend was there and they drove to Rajpura police station. He called his brother to come there as well.  They asked if the police took the applicant from [Village 1] and the police said no maybe another police station was responsible. They then checked with all the other police stations but couldn’t find the applicant.

   n.His brother’s friend worked in the police and told them to go seek help from an MP. It took a couple of days to organise a meeting with the MP. On the third day they approached the guy but he was in another city. It was [Official 1]. They spoke to his administrator who organised a meeting with the MP. Then they spoke with the Minister in [location] on the third day.  They told him who the applicant’s father was and that the applicant went to see her mother and some police took her but they didn’t know which or to where. It took time but they received his help. He said ok he would  try to arrange to find the applicant. It took him a couple of days and he came back and arranged another meeting.  They had to give him some money the same day, 500,000 rupees.  The next day he informed them he had been able to locate the applicant. He said the guy who worked for him in the administration would try to organise a meeting He set up a different area and a time for them to go there. They went there and waited and then the applicant was brought there in a police jeep. He went there with his mother, brother, the admin guy and a cousin.  She was in a very bad condition, beaten and bruised and she was scared even if he touched her.  They shifted her in his mother’s car.  The applicant arrived with her mother and four guys in civil dress, not uniforms.  Her mother didn’t leave with them, a cousin drove her to her village. 

   o.He and the applicant remained at his family home for a couple of days. The applicant could not get out of bed in her condition.

   p.The next day the applicant went back again with his brother to [Village 1] because someone rang.  The headman rang the family and informed them that the applicant’s mother had been burned to death. They tried very hard for the applicant not to learn this but she heard the call. She cried and wanted to go. They had a fight but she said she wanted to see her mother for the last time. On the second day she went there. She came back and was crying a lot.  They stayed for another couple of days. Because one of his brother’s friends said it was no good keeping the applicant here they went to a Gurdwara in Delhi where they stayed for three or four days.  The Tribunal asked why they thought they needed to stay in a Gurdwara in Delhi and the applicant’s husband responded it was because they were scared of the police. The Tribunal put to him that there was some indication of some assistance they received from the police.  The applicant’s husband refuted this and pointed out it was the police who had caused the harm and fear.

   q.He thinks the police or people from the Sikh community will kill him, the applicant and their daughter if they return to India.  He doesn’t trust anyone there after what happened to the applicant.  The police took the applicant to know where her father was.  He doesn’t understand why they did this 20 years after her father’s death.

   r.He did not try to go with his wife to see her mother after she was killed because he did not want his wife to go there and his own father had recently died.  There were so many things happening at the time. When the applicant went with his brother he was not even at home.  

   s.He and the applicant struggle a lot.  They saw a very hard time. They are trying to build a world here with their daughter. They are both working very well.

2. The following is a summary of the further information provided by the applicant at the hearing:

   a.Her uncle should have made the wedding arrangements but instead his son did. A few of her family members were supportive and gave the applicant respect enough to choose her husband and love whereas others didn’t.

   b.The Tribunal asked the applicant if she thought she would face any problems or harm in India because of her mental health.  The applicant appeared confused and her representative responded on her behalf that he did not think so. He stated there was no need to submit any further psychological evidence on the applicant’s behalf.

   c.The applicant’s representative made further submissions that he considered the applicant highly credible.  He submitted that contrary to the Tribunal’s suggestion, no police had helped the applicant and her family in India.

   Post-Hearing Submissions

3. On 23 January 2023 the applicant’s representative wrote to the Tribunal Deputy Registrar submitting that the Tribunal had not brought “an open mind to the hearing” and that the presiding member “is affected by actual bias or apprehended bias”.  The representative referred to a brief personal conversation some years prior as a basis for alleging the presiding member’s conduct in the hearing was compromised by bias.  The representative also referred to the Tribunal’s questions in the hearing and “lack of consideration for the mental state of” the applicant as indicators of actual or apprehended bias upon the Tribunal’s part.  The representative refers to his experience as a long-serving former member of both the Refugee Review Tribunal and the Migration Review Tribunal and submits that the hearing should have lasted only an hour as it should have been quickly ascertained the applicant was a witness of truth based upon her direct and consistent answers.  The representative describes this matter as “one of the strongest protection cases where the prospect of persecution in India is certain”.  The representative submits the hearing should not have lasted for more than three and a half hours.  The representative complained that despite his pre-hearing request that the applicant give evidence in relatively short periods her evidence at hearing was given over long periods, the longest being just less than 1 hour 40 minutes.  He submits that the applicant’s distressed state was obvious and short breaks should have been provided to her.  The representative submits that the Tribunal’s question as to why the Indian security forces expended efforts upon the applicant and her mother given they seemed unlikely targets as going “beyond what is reasonable”.  The representative then addresses this and other issues put to the applicant by the Tribunal, referring to country information in support of details of her claims, further explanation and plausibility, to submit that the applicant’s claims are all credible. The representative closes his submission by again stating that the presiding member is affected by actual bias or apprehended bias.

4. On 1 February 2023 an Executive Officer of the Tribunal wrote by email to the representative noting that he had raised a number of concerns in his submission and asking him to confirm whether he was requesting that the presiding member recuse herself from this matter and or whether or not he wished to proceed with a complaint.

5. Subsequently on 1 February 2023 the applicant’s representative responded to the Executive Officer’s email writing he was not requesting the presiding member recuse herself and saying this was a matter for the member. He emphasised that his concern was the nature and tone of the Tribunal’s questioning during the hearing in a case which is very strong in his opinion, and that this should not have occurred.  He also stated that the main purpose of his submission “was not a complaint, but to put the Tribunal on notice that in the event the decision under review is affirmed, it may be affected by actual or apprehended bias.”  He referred to the second and third purposes of drawing the member’s attention to the conduct of the hearing, which in his opinion affected the applicant’s ability to give evidence; and to make submissions on the nature of the questions and why some were not appropriate or could have been approached differently.

6. The Tribunal was informed by the Executive Officer that based upon the representative’s response his submission was considered neither a recusal request nor a complaint. The representative was also informed that the Tribunal was provided with his submission for its consideration.

7. On 7 April 2023 the applicant’s representative wrote to the Tribunal asking for an explanation as to why the applicant’s Tribunal file was separated from her husband’s Tribunal file.  The representative also attached a document he wrote for the applicant in the style of a tribunal decision.

8. On 12 April 2023 the Tribunal wrote to the applicant’s representative to inform him the applicant’s Tribunal file was separated from her husband’s file in order to maintain the confidentiality she had requested.

   The Tribunal’s response to concerns raised by the applicant’s representative

9. The Tribunal notes the representative’s concerns that the Tribunal is affected by actual bias or apprehended bias.  The Tribunal does not agree with his submission.  The Tribunal came to the hearing with an open mind and had also spent considerable time in research to locate independent evidence in support of the applicant’s claimed family history. The Tribunal notes it must put concerns it has about an applicant’s evidence to them to provide them with an opportunity to respond, in order to accord them procedural fairness. The Tribunal then considers the applicant’s responses in evaluating credibility concerns.  To ignore an applicant’s response would represent a closed mind.  In this matter the Tribunal has fully considered the applicant’s and her husband’s responses to credibility concerns put to them at hearing and in some instances has found that their responses have fully addressed concerns, whereas in some instances they did not or did so partially. The Tribunal has also carefully considered the country information and proffered explanations submitted by the representative and in some instances found these persuasive and in others not so. The Tribunal is of the view that it has an open mind in this matter and the nature of its questioning at hearing would not give rise to an apprehension of bias. The Tribunal therefore has decided not to recuse itself.

10. The Tribunal also notes the representative’s concerns about the conduct of the hearing in relation to whether or not breaks were offered to the applicant.  At the commencement of the hearing the Tribunal clearly informed the applicant that it had noted her health concerns and that it would allow her breaks whenever she requested them.  The applicant requested two breaks during the hearing which the Tribunal gave.  There was no apparent distress upon the part of the applicant and she continued to be responsive to questions and offer information readily.  The Tribunal also notes that the applicant’s representative was present throughout the hearing and at no time indicated any concern for his client or made any request on her behalf that other breaks be offered.  Further, the representative insisted the hearing continue for a longer period when the Tribunal suggested it be adjourned to another day close to the three-hour mark. Given the above, and the applicant’s awareness breaks would be given whenever she required one, the Tribunal is of the view that the applicant was not constrained in her ability to provide evidence and argument during the hearing.

    Country Information

11. DFAT’s most recent ‘Country Information Report’ on India, published in December 2020, contains the following:

    Mental Health

    Access to mental health care is difficult and patients are subject to stigma and discrimination. In July 2017, the Mental Healthcare Act (MHC Act) came into force, repealing the earlier Mental Healthcare Act (1987), which had been widely criticised for not recognising patients’ rights. Interest groups consider the MHC Act an improvement as it contains a ‘right to mental health care’ and repeals section 309 of the Penal Code (1860), which had criminalised attempted suicide by a mentally ill person….. In 2014, the government released the first National Mental Health policy of India, ‘New Pathways New Hope’, and in 2016 undertook the first National Mental Health Survey of India.

    Access to mental health care is not uniform across the country, with availability of services significantly more limited in rural areas than in urban cities and large towns. Across the country, an estimated 150 million people (12.5 per cent of the population) are in need of active interventions for mental illnesses, including nearly 12 million who are living with serious mental disorders. Given the shortfall of specialist and health services for mental illness, treatment is often unavailable or inaccessible even for those who actively seek health care.

    According to India’s National Health Profile 2018, there are 43 government mental health hospitals in India. West Bengal has five facilities; Gujarat and Maharashtra have four; Kerala and Uttar Pradesh have three; Jharkhand, J&K, Karnataka, Madhya Pradesh and Rajasthan have two; and the remaining states have one facility each. India has fewer than 4,000 mental health trained professionals – fewer than one per 100,000 population. Most services are located in major cities, which often leads to local healers and non-qualified providers being the first point of care, even for serious mental health conditions.

    In practice, mental health programs continue to suffer from severe constraints in technical, human and material resources, and remain a low priority on the public health agenda. A 2017 WHO report that examined improving access to, and the appropriate use of, medicines for mental disorders found significant barriers to accessing medicines at all levels of the health care system. Many barriers are linked to stigma associated with mental disorders, duration and costs of treatment, and, in many areas, the geographical distance from health care providers.

    …

    Northeast Separatism

    Militancy in India’s northeast region has a long history. However, violence has declined significantly. According to SATP, the northeast (comprising eight states: Arunachal Pradesh, Assam, Manipur, Mizoram, Meghalya, Nagaland, Tripura and Sikkim) recorded 34 fatalities in 2019 (18 civilians, five security force personnel and 11 insurgents) compared to 73 in 2018 (20 civilians, 15 security force personnel and 38 insurgents). SATP data reports around 44 active terrorist/insurgent groups operating across the northeastern states. Their objectives are largely political and include secession and the protection of rights of religious and ethnic communities. Many have suspended operations to engage in separate peace processes. The sixth schedule of the constitution created 16 autonomous administrative divisions to ease tensions in Assam, Meghalaya, Mizoram and Tripura. The 2015 Naga Framework Agreement, signed between the Indian government and some Naga militant groups, established a ceasefire to facilitate peace negotiations, which continue. Some militant movements persist in areas of Assam, Meghalaya, Manipur and Nagaland.

    …

    Sikhs

    India has a Sikh population of 20.8 million people (2011 census). The growth rate of Sikhism declined since the 2001 census. Sikhism is the dominant religion in the state of Punjab (approximately 16 million people) with significant populations in Haryana (1.2 million), Delhi NCR (570,581), Rajasthan (872,930), Uttar Pradesh (643,500) and Uttarakhand (295,530).

    India’s Sikh population has suffered from issues surrounding recognition. The constitution groups Sikhs, Buddhists and Jains with Hinduism; therefore they are not legally recognised as distinct religions.

    One of the points of difference between Sikh groups is the extent to which they support the creation of an independent Sikh state known as ‘Khalistan’. The 1966 creation of the Punjabi-speaking Sikh majority state of Punjab went some way to addressing these demands. During the internal struggle within the Sikh community in 1982, separatist leader Jarnail Singh Bhindranwale and his followers moved into the Golden Temple complex in Amritsar. In June 1984, the Indian government ordered the army to eject Bhindranwale and his followers from the complex in an offensive known as ‘Operation Blue Star’. The army bombarded the Golden Temple complex, inflicting serious damage. Bhindranwale and many of his supporters were killed during the operation.

    In retaliation for Operation Blue Star, two of then-Prime Minister Indira Gandhi’s Sikh bodyguards assassinated her at her home in New Delhi in October 1984. In the days following, mobs seeking revenge for the assassination attacked Sikh homes and businesses, including in New Delhi. Approximately 3,000 people, mostly Sikhs, were killed in the violence. Security forces carried out further operations to suppress Sikh separatism during the late 1980s, during which allegations emerged of torture, extrajudicial killings and deaths in custody carried out by security forces.

    NGOs report communal violence disproportionately affects India’s religious minorities, in particular Muslims, but also Christians and Sikhs, who face varying degrees of socio-economic, cultural and legal discrimination. Reports of minor cases of violence against Sikhs occur. Media sources have reported isolated incidents involving Sikhs and the police in recent years …

    … According to information cited by the Immigration and Refugee Board of Canada (IRB), since the late 1980s, Sikhs living outside Punjab mostly do so safely and integrate economically and socially into their communities. IRB notes while there can be localised discrimination, for example blocking entry to public areas or requiring the removal of articles of faith (turbans or kirpans) before sitting examination in educational programs, such issues are adequately addressed by local courts or police. Sikhs may face difficulties integrating in areas where a Sikh community does not already exist, and may face discriminatory treatment from law enforcement and government officials for wearing the kirpan.

    DFAT assesses Sikhs in India generally face a low level of official and societal discrimination and violence.

    …

    Marriage (inter-faith, inter-caste)

    India is officially a secular and multi-ethnic country, and inter-faith and inter-caste marriages are legal. However, many Indian families still prefer marriages arranged within their own religion and caste. According to researchers, around 10 per cent of all marriages in India take place between different castes while around 2.1 per cent of marriages are inter-faith.

    The Special Marriage Act 1954 (SMA) is the secular marriage law in India, which enables inter-faith and inter-caste marriages, and is an alternative to each of the personal laws. The SMA is available to all citizens who choose to marry outside their faith, and the religion of the parties to an intended marriage is immaterial under the Act. However, few people use the SMA, favouring traditional personal laws that provide solemnisation of marriage under religious rites. As an example, in 2019, according to official data, of the 19,250 marriages registered in Delhi, 3 per cent were inter-faith marriages (and registered under the SMA).

    The Hindu Marriage Act allows members of the Hindu, Buddhist, Jain or Sikh religions to intermarry without declaring detachment from their religion. …

    Despite their legality, in practice, there is a continued and growing intolerance in Indian society to inter-caste and inter-faith marriages. Many families cut off social relations with sons or daughters who undertake such unions, while other families commit or instigate acts of violence against the person who undergoes the marriage. Communal tensions and violence can also result. In August 2019, in Haryana, when a shopkeeper’s daughter reportedly left her family to marry a tailor of a different religious community, people blocked a highway and forced shopkeepers to keep shutters down, demanding the bride be ‘returned’ to her parents. The couple sought protection from the state High Court. In May 2019, a newlywed couple was reportedly set on fire in a village in Maharashtra because the woman’s family was opposed to their inter-caste love marriage.

    In some parts of the country, informal social systems like the male-only Khap Panchayats (or Khaps) pass decisions and judgements on marriage, based on traditions. (DFAT understands Khap Panchayats are mainly found in Haryana and parts of Rajasthan, Uttar Pradesh, Punjab and Madhya Pradesh.) Such punishments in marriage cases include fines, social ostracism, public humiliation and expulsion from the village. Despite the Supreme Court ruling against the practice, intrusions by Khaps to stop a legal marriage between consenting adults continue. Analysts have claimed there is a lack of political will to act against Khap Panchayats given their influence over large numbers of voters.

    One reason for social disapproval of mixed marriages in India is that inter-faith marriage generally takes place after one of the parties converts to the other’s religion, despite this being unnecessary under the SMA. While the constitution guarantees freedom of conscience and free profession to all (Articles 25-28), for some sections of the majority community, conversion has been and remains a sensitive issue.

    Hindu nationalists have used the term ‘love jihad’ to allege Muslim extremist groups are leading an organised campaign to coerce Hindu women to marry Muslim men and convert to Islam. DFAT has found no evidence of Muslim men coercing Hindu women into marriage for the purposes of proselytisation.

    Other intermixed unions perceived to be less socially accepted are those between rich and poor, and Dalit and non-Dalit Hindus.

    Practical matters such as renting property, obtaining a passport or boarding flights can be difficult for such mixed unions. Some report the need to remain vigilant against being found, as their extended family is ‘still on the lookout for them’. To support such couples there are limited initiatives such as Love Commandoes, Pratibimb Mishra Vivah Mandal, Dhanak of Humanity, Adhalinal Kaadhal Seiveer and Chayan which provide a mix of legal advice, counsel and shelter. In 2019, Dhanak of Humanity self-reported it had handled 2,000 cases since 2005. An analysis of roughly half their cases showed 58 per cent were inter-caste and 42 per cent were inter-faith couples.

    Couples from rural areas who marry inter-caste or inter-faith may attempt to move to the anonymity of urban areas. However, factors that can affect couples moving to a larger city include their financial capacity, the degree to which their families have the power to find them, their educational background and employability, availability of a personal support network, and whether they appear ’visibly different’.

    DFAT assesses the treatment of people in inter-faith and inter-caste marriages varies according to the families involved. It can range from approval in some families, to disapproval, ostracism, harassment, or violence (sometimes lethal). DFAT assesses that, in most cases, couples in mixed unions will experience some form of societal and official discrimination. DFAT assesses the risk of violence that can result in death of one or both of the parties to the mixed marriage is higher in communities in which Khap Panchayats operate.
    ...

    Corruption

    … GAN Integrity’s India Corruption Report claims corrupt practices such as facilitation payments and bribes persist in India, with corruption particularly prevalent in the judiciary, police, public services and public procurement sectors. The World Justice Project Rule of Law (WJP ROL) Index 2020 measured the rule of law based on a range of factors, including absence of corruption. Factors considered included bribery, improper influence by public or private interests, and misappropriation of public funds or other resources across the executive, judiciary, military, police and legislature. In 2020, India ranked 85 out of 128 countries on the index for absence of corruption in government. Within this category, the report found the legislature the most corrupt, followed by the police/military and executive branch. The judiciary was perceived to be the least corrupt. Since 2014, India has consistently ranked low on the WJP ROL indices measuring absence of corruption across government. Similarly, India ranked 80 out of 198 countries on Transparency International’s Corruption Index, 2019 (down from 78^th place in 2018).

    The presence of corruption in India can lead to high levels of cynicism about new government initiatives and makes anti-corruption a common electoral theme. Access to justice, particularly dealing with Police, is a common complaint, although people’s experience varies greatly from state to state and within states. DFAT assesses corruption remains a part of daily life across India, with facilitation payments and bribes common, particularly at the local level. …

    State Police Services

    According to The Economist, India’s 1.9 million police officers ‘do not enjoy a good reputation’. However, local sources report police effectiveness is hampered by lack of resourcing and infrastructure. Police budgets, on average, account for 3-5 per cent of state expenditure. The Status of Policing in India Report 2019 (which used official data drawn from the NCRB and the Bureau of Police Research and Development to assess police capacity and adequacy) found inadequate infrastructure (physical, technological, human), resourcing and training compromised police operations. According to the report, approximately 240 police stations across India have no access to vehicles; 214 have no access to telephones; 70 have no access to wireless connections; and 24 have no access to either telephone or wireless connections. On average, police stations in India have six computers per station, but states like Assam and Bihar have an average of less than one computer per station.

    Lack of ‘boots on the ground’ is another key capacity problem. Police in India reportedly work at 77 per cent of their sanctioned personnel capacity. This equates to around 1.2 ordinary police officers per 1,000 people, about half the level recommended by the UN. Long working days and unpaid overtime are common complaints.

1. The UK Home Office November 2021 CPIN report, ‘India: Religious minorities and Scheduled Castes and Tribes’, contains the following:

   Sikhs

   The CSDS India policing report 2018 showed that Sikhs have less trust in the police than any other caste group or minority, with 45% feeling "somewhat" or "high" distrust, and 51% are "highly fearful" or "somewhat fearful" of the police. The same source also noted that, at 49%, Sikhs are most likely to hold a negative perception of the police, compared to 33% of Hindus or 22% of Christians.

   Sikhs who advocate for an independent Khalistan face action by the authorities. In recent years, credible analysts have indicated that the Khalistan movement enjoys little support in the Punjab, with greater strength among Sikh diaspora groups and neighbouring Pakistan. 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. For example, in July 2020, nine persons linked to separatist Khalistani organisations were designated terrorists under the Unlawful Activities (Prevention) Act (UAPA) by India’s government. 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.

   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. The government also blocked 40 websites belonging to the US-based Sikhs for Justice, a banned pro-Khalistan group. 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. In August 2022 it was reported that British intelligence agencies may have shared information with Indian authorities in 2017 that led to the arrest of Sikh Scottish national and online activist for Sikh rights, Jagtar Singh Johal, on terrorism charges in while in Punjab. The UN Working Group on Arbitrary Detention has stated his arrest was arbitrary while the Human rights groups Redress and Reprieve say Johal was tortured until he signed a false confession. Johal’s trial date was set for 28 November 2022 after five years in detention, however COISS found no updated information on the status of the case. NGOs have reported several instances of enforced disappearances and extrajudicial killings of Sikhs.

   Sikhs are subject to harassment by Hindu nationalists. According to DFAT, Sikhs in India generally face a low level of official and societal discrimination and violence. The Pew Research Centre indicates that 14 per cent of Sikhs think that there is a lot of discrimination against Sikhs in India today, and 18 per cent report feeling personally discriminated against due to their religion. However, there are reports that Hindu nationalists have harassed Sikhs and pressured them to reject religious practices and beliefs that are distinct to Sikhism. The Council on Minority Rights in India’s collected data on alleged hate crimes against Sikhs during 2021 with three cases recoded in Punjab and four in Uttar Pradesh. The report notes that the hate crimes against Sikhs are not widely reported in the media. Many Sikhs from Punjab participated in the farmers’ protests of 2020-2021, and there are reports of harassment and attacks against protestors, including in diaspora countries like Australia. Some authorities attempted to link the farmers’ protests to the Khalistan movement. Senior BJP leaders, their supporters on social media, and pro-government media, have accused Sikhs involved in the protests of having a ‘Khalistani’ agenda or being anti-national or treasonous. Similarly after a visit to the Punjab, hate speech and genocidal comments were made against the Sikh community by BJP politicians and right-wing Hindus after the Prime Minister’s convoy was unable to pass through a group of protestors in 2022.

   …

   The USCIRF Annual Report 2021 noted that: ‘Hindu nationalist groups […] launched inflammatory campaigns decrying interfaith relationships or engagements, including calling for boycotts and censorship of media depictions of interfaith relationships. These efforts targeting and delegitimizing interfaith relationships have led to attacks and arrests of non-Hindus and to innuendo, suspicion, and violence toward any interfaith interaction.’

   Inter-faith Marriage

   Inter-faith marriages, while not common, are legal under India's secular constitution. Couples can marry under one of India’s personal religious laws, which have been codified according to the requirements of different religions in India, or under the Special Marriage Act 1954. Interfaith marriages are rare and many Indians think people should not marry outside their religion. Interfaith couples are generally required to provide public notice 30 days in advance, including addresses, photographs and religious affiliation, although this requirement varies across states. Hindus, Muslims, Buddhists, Sikhs or Jains who marry outside their religion face the possibility of losing their property inheritance rights under those communities’ laws. Inter-faith couples often face family and social ostracism, harassment while violence and honour killings occur. Research in 2019 indicates that stopping inter-faith marriage is a very important issues for many Indians. There is only one NGO known to be providing support to inter-caste and inter-faith couples in India, Dhanak of Humanity.

   The legality of interfaith marriages is regularly contested in the courts. In March 2018, India’s Supreme Court held that if a Hindu woman willingly consents to marrying a Muslim man and converting to his religion, the judicial system has no role in examining the validity of that relationship. In late September 2020, the Allahabad High Court in Uttar Pradesh ruled that conversion only for the purpose of marriage was unacceptable. In response, several states indicated they were considering laws against so-called ‘love jihad.’ However, in November 2020 the court struck down this decision, saying that the right of two adults to live together, irrespective of religion or whether one had converted or not, cannot be encroached on by the state or others. In April 2022, the Kerala High Court refused to intervene in a marriage between a Christian woman and a Muslim man, after the woman’s family petitioned the court alleging it was a case of ‘love jihad’. The court dismissed the petition after the woman testified that she had married of her own free will. Despite these rulings, several state governments, including Uttarakhand, Himachal Pradesh, Uttar Pradesh and Madhya Pradesh, have passed ordinances which make inter-faith marriage more difficult.

2. A November 2022 Canadian IRB Research Response states:

   According to the US International Religious Freedom Report for 2021, under the Constitution of India, Sikhs are subject to laws and legislation concerning Hindus, such as the Hindu Marriage Act . The same source further states that under federal law, Sikhs have official minority status, and that the Constitution states that "the government is responsible for protecting religious minorities and enabling them to preserve their culture and religious interests". The US report also notes that Sikh marriages are recognized but legal provisions for divorce are not provided and "[o]ther Sikh personal status matters fall under Hindu codes".

   …

   The Pew Research Center, a "nonpartisan fact tank" that conducts "data-driven" social science research including opinion polling, carried out in-person interviews with 29,999 Indian adults, including 1,782 people who identify as Sikh, and 82 percent of Sikh respondents said they are "very free" to practice their religion (Pew Research Center 29 June 2021). In a telephone interview with the Research Directorate, an associate professor at Hiram College in Ohio, who has conducted research on Sikh separatism, stated that there might be "rare cases of religious discrimination," but Sikhs "generally" do not face "systematic problems in India based on their identity" (Associate Professor 4 May 2022).

   In an interview with the Research Directorate, an emeritus professor at Oxford Brookes University in the UK, who conducted research on Indian capitalism with emphasis on human rights in Punjab, stated that since 1984, "prejudice" against Sikhs has become "very deep rooted" (Emeritus Professor 29 Apr. 2022).

   …Sources note that Sikhs face communal violence (MRG June 2020; Australia 10 Dec. 2020, para. 3.66).

   The Pew Research Center survey notes that 14 percent of Sikh respondents stated that Sikhs "face a lot of discrimination," 18 percent stated that they had personally faced "religious discrimination," and 78 percent stated that communal violence was a "major issue" (Pew Research Center 29 June 2021)….  A report by the US Commission on International Religious Freedom (USCIRF) states that religious freedom conditions "significantly worsened" in 2021 and that the government is "promoting a Hindu-nationalist agenda" that "negatively affect[s]" religious minorities, including Sikhs (US 25 Apr. 2022, 20). The report further states that the government is making systemic changes through "new and existing laws and structural changes," at national and state levels, that are "hostile" to religious minorities (US 25 Apr. 2022, 20). The US International Religious Freedom Report for 2021 states that in the Union Territory of Jammu and Kashmir, the "[t]errorist groups" Lashkar-e-Taiyaaba [Lakshkar-e-Tayyiba] and Hizbul Mujahideen [Hizb-ul-Mujahideen] killed "several" civilians belonging to "minority Hindu and Sikh communities," and the same source further describes "targeted attacks" in October 2021 that killed 11 individuals including a Sikh teacher in a school in Srinagar (US 2 June 2022, 25). The same source also notes that the killing of a local businessman led to "widespread fear" among Hindus and Sikhs, causing "hundreds" to leave Jammu and Kashmir (US 2 June 2022, 25).

   3. Sikh Separatist Organizations

   According to the US Country Reports on Terrorism 2020, there have been no "significant recent activities" by Sikh separatist (Khalistan) organizations in India (US 16 Dec. 2021). The Associate Professor stated that while there are "two or three" Sikh political organizations that support Sikh separatism, there are "very few" Sikh militants and there is no organized armed separatist movement within Punjab (Associate Professor 4 May 2022). According to a report from the Centre for Information Resilience (CIR), which is "an independent, non-profit social enterprise dedicated to countering disinformation, exposing human rights abuses, and combating online behaviour harmful to women and minorities" (CIR n.d.), a "coordinated influence operation" on social media used fake profiles to promote narratives arguing that "'real' Sikhs support the Indian government and Indian nationalism, and that advocates of Sikh autonomy and independence are extremist or terrorist" (CIR 23 Nov. 2021, 4, 2). The report further states that the accounts targeted the issues of the farmers' protests and the Khalistan movement, "claim[ing] any notion of Sikh independence is extremist and terrorist related" (CIR 23 Nov. 2021, 5).

   4. Farmers' Protests

   According to media sources, protests that occurred in response to new agricultural laws were "largely led" and organized by Sikh farmers from Punjab (RNS 30 Nov. 2020), or largely populated by Sikh farmers from Punjab and Haryana (The New York Times 19 Nov. 2021). According to Human Rights Watch (HRW), senior leaders from the ruling Bharatiya Janata Party (BJP) party, their supporters and pro-government media blamed Sikhs for the protests, stating they had a "'Khalistani' agenda" (HRW 19 Feb. 2021). According to an article from Asian News International (ANI), a news agency in India, the Haryana Chief Minister stated that the farmers' protests contained Khalistan supporters (ANI 3 Dec. 2020). According to New Delhi Television (NDTV), a news broadcaster in India (NDTV n.d.), the Chief Minister also stated that the protesters were from Punjab and not from his state of Haryana (NDTV 28 Nov. 2020). In correspondence with the Research Directorate, an attorney for Voices for Freedom (VFF), an international human rights NGO working in India, UK, Canada and the US to "publicize the plight of the oppressed" by campaigning and publishing reports (VFF n.d.), noted that when Sikhs speak out against BJP policies they are called "anti-nationalist" by the government (Attorney 27 May 2022). ThePrint, an independent news organization based in New Delhi (ThePrint n.d.), states that the BJP accused the Indian National Congress party, which was then in power in Punjab, of "aligning with radical elements" (ThePrint 27 Nov. 2020).

   …

   5. Treatment of Perceived Separatists or Khalistan Supporters in Punjab

   According to the Associate Professor, there are Sikh political parties which ascribe to separatism, including the Shiromani Akali Dal (Amritsar) (SAD(A)) [Shiromani Akali Dal (Mann); SAD(M); SAD(Amritsar); Shiromani Akali Dal (Amritsar) (Simranjit Singh Mann)] and the Dal Khalsa; SAD(A) is recognized by the Election Commission of India and advocates for Khalistan through democratic means (Associate Professor 4 May 2022).

   In correspondence with the Research Directorate sent on 12 May 2022, the WSO representative stated that the "government, civil society and media vilify Sikhs advocating for Khalistan as extremists and militants by default" (Representative 12 May 2022). The Emeritus Professor noted that the government is "hostile" to separatist movements (Emeritus Professor 29 Apr. 2022). The same source further noted that the societal view of Khalistan activists from the Hindu population is one of suspicion and while "some" Sikhs are sympathetic, many view Khalistan activists as "problematic" (Emeritus Professor 29 Apr. 2022).

   According to sources, the police "keep track of" (Emeritus Professor 29 Apr. 2022) or "monitor" Khalistan supporters (Associate Professor 4 May 2022; Representative 12 May 2022). According to the Associate Professor, security services are more likely to focus on Sikh separatists because they represent "a perceived political threat to the unity of India" (Associate Professor 4 May 2022). According to the Emeritus Professor, individuals who attend SAD(A) speeches will be tracked by the police and Khalistan activists who participate in activities such as demonstrations, meetings or posting on social media will be monitored (Emeritus Professor 29 Apr. 2022). The same source further stated that individuals who move to another city will continue to be tracked since that information will be shared (Emeritus Professor 29 Apr. 2022). The WSO representative noted that Khalistan activists are tracked through social media, with police and intelligence forces having "vast and sophisticated IT cells which devote considerable resources to tracking Khalistan supporters and also create false accounts and content in order to lure individuals to express support for Khalistan so they can also be tracked" (Representative 12 May 2022). According to the Indian Express, the Punjab police has "many deradicalisation cells" which monitor social media posts and track down individuals with separatist connections who are then counselled by senior offices (The Indian Express 23 Aug. 2020). Based on information provided by ten youths who were summoned to "counseling" by the Punjab police, the Indian Express noted that these youths had their "photo, finge[rp]rints, copies of the Aadhaar card [a national identity card] and details of their family" recorded by police (The Indian Express 23 Aug. 2020). The same source also states that a man whose son was studying in Canada said he was called to a police station to provide his son's passport number due to a social media post "related to Referendum 2020" his son had liked; the man also said that he paid a bribe to officials in order to "'close the chapter'" (The Indian Express 23 Aug. 2020).

   According to the Emeritus Professor, intelligence and law enforcement agencies, including those in Punjab, are controlled by the central government which views Khalistan supporters "very suspiciously" (Emeritus Professor 29 Apr. 2022). The same source also stated that the police will not say that they have arrested someone for supporting Khalistan, rather that the arrest is attributed to "illegal activities or supporting militants," such as putting up pro-Khalistan posters, having weapons, or providing shelter to militants; the police will blame Khalistan activists for crimes in which they cannot find the perpetrator (Emeritus Professor 29 Apr. 2022). Similarly, the WSO representative stated that perceived Khalistan supporters are "often implicated in false cases" and police forces "harass" Khalistan activists and their families and friends (Representative 12 May 2022).

   The WSO representative stated that the prevalence of detention in Punjab and India is "increasing" with a "large number" of Sikh youth reporting harassment or questioning and a "significant number" arrested and charged due to support for Khalistan (Representative 12 May 2022). According to media sources, three Sikh men were sentenced to a life term on the charges of "waging war" against India for possession of literature related to Khalistan (The Indian Express 24 Feb. 2019; SBS Punjabi 11 Feb. 2019). Sources also note that three people were arrested for distributing or providing registration forms to hold a vote for a referendum to form Khalistan and that they were sentenced to six-day police custody (The Tribune 28 Dec. 2021; PTI 28 Dec. 2021).

   6. Treatment of Suspected Separatists or Khalistan Supporters Outside of Punjab

   According to the WSO representative, "suspected supporters of Khalistan are not safe outside of Punjab, anywhere in India" (Representative 12 May 2022). The same source added that "no Sikh can openly be an advocate for or support the creation of Khalistan" and doing so results in "harassment by the police, false cases and also hatred of those who do not support Khalistan"; the government portrays anyone supporting separatism as "an extremist or terrorist and as an 'anti-national' that can be legitimately targeted for violence" (Representative 12 May 2022). The Associate Professor stated that Sikhs who display separatist beliefs face "persecution" by government authorities and "possible retribution" from the "majority community outside of Punjab" (Associate Professor 4 May 2022). The Associate Professor further stated that Sikhs with separatist beliefs living outside of Punjab would have "negative interactions" in education and employment, would be "monitored" by the authorities, and would find it "more difficult" to live outside of Punjab (Associate Professor 4 May 2022). The WSO representative stated that requirements that have made the relocation of Sikhs facing "persecution" "more challenging" include registration at a police station when moving, use of the Aadhaar card for basic services such as banking, and tenant verification (Representative 12 May 2022).

   The WSO representative stated that if an individual is outside of Punjab and their support of Khalistan becomes known, "there is little doubt they would face discrimination, harassment or worse" (Representative 12 May 2022). The Emeritus Professor stated that society outside of Punjab is "more hostile to Sikhs in general" and that if the beliefs of a Khalistan activist outside of Punjab were to become known, they would be in danger of violence from local people (Emeritus Professor 29 Apr. 2022). According to the Press Trust of India (PTI), an Indian news agency, a Khalistan supporter from Punjab who was "hiding" in Bengaluru was "'traced'" by the police and arrested (PTI 12 Jan. 2020). The Hindu, an Indian English-language daily newspaper, states that in Delhi, three "alleged" Khalistan supporters were arrested; according to police, they had ties to the Khalistan Liberation Force leaders, were planning targeted killings, and had weapons in their possession (The Hindu 27 June 2020). The Hindustan Times states that a special investigation team in Himachal Pradesh arrested an individual for putting up Khalistan flags and writing graffiti at the Himachal Pradesh Vidhan Sabha [legislative assembly] (Hindustan Times 11 May 2022).[2]

   [2] Canada IRB, 2022, RIR IND201185.E, “India: Situation and treatment of perceived Sikh militants and Khalistan Supporters in the state of Punjab…”, 28 November

1. The Tribunal also accepts that some amongst the general Sikh community were opposed to the applicant’s marriage and that their opposition was heightened by the applicant’s status as the daughter of a Sikh martyr.

2. The applicant’s description of what happened on her wedding day was a little muddled but her husband’s evidence helped clarify the events.  He gave this evidence in a very matter of fact way without apparent exaggeration, and the Tribunal accepts it. The Tribunal therefore accepts that on their wedding day armed men from the Sikh community, possibly the Nihang encouraged by some of the applicant’s relatives, tried to attack the groom’s wedding party so that they had to escape and arrange protection. The Tribunal also accepts that the applicant and her husband had to then conduct their wedding ceremony in a hurried fashion to avoid further attack from Sikh aggressors.

3. The Tribunal notes that the applicant and her husband left India several months after their marriage for the applicant to pursue her studies in Australia.  As put to the applicant by the delegate the applicant provided evidence she had sat her IELTS test in August 2008 in preparation for her visa application. The applicant and her husband described the months after their wedding as insecure and that they needed to stay with a number of the husband’s relatives and keep a low profile over this period.  The Tribunal accepts that after the incidents on the wedding day it is quite likely the applicant and her husband were anxious about further attacks from Sikhs opposed to their marriage, and that they took measures, successfully, to avoid this possibility.

   Applicant’s return to India in 2012

4. The Tribunal accepts that the applicant returned to India without her husband in 2012 in order to bring their daughter back to Australia. Movement records held by the department confirm that the applicant’s [daughter] departed Australia in December 2011, that the applicant departed Australia in April 2012, and that the applicant and her daughter both returned to Australia on the same day in May 2012.  The movement records also show no departure by the applicant’s husband in 2011 or 2012.

5. The applicant gave evidence in her review application that she stayed with her in-laws during her month-long return in 2012, was focussed upon retrieving her baby daughter, and had no problems while she was in India on that occasion. The Tribunal accepts this evidence.

   Applicant’s return to India in 2013

6. Movement records also confirm that the applicant, her husband and their daughter all departed Australia in early February 2013 and returned to Australia in early March 2013. The applicant also submitted the death certificate for her father-in-law, confirming his death on [date] February 2013.  The Tribunal accepts that the applicant, her husband and their child returned to India at that time for her father-in-law’s funeral.

7. The applicant’s evidence about what happened to her in India during her 2103 return was quite inconsistent.  She initially claimed that she was apprehended by Hindu police while at her father-in-law’s funeral, kept at a police station for about two weeks where she was questioned about converting her husband to Sikhism and sexually assaulted, and that her mother was subsequently detained with the applicant when her mother came to the police station to get the applicant released.  She maintained this version of events during her department interview.

8. In the department’s decision the delegate outlined strong adverse credibility concerns regarding how the applicant could be apprehended by police in the middle of a sizeable funeral.

9. In the applicant’s review application the applicant changed these details considerably.  She stated that after the funeral ceremonies were completed she and her mother were apprehended together by Sikh police when the applicant went to her mother’s village to meet with her, and they were taken to a remote unknown building where they were kept, interrogated and mistreated.  

10. The applicant was inconsistent in her description of meeting with her mother in the village, regarding the nature of her mother’s reception of her, her knowledge of her mother’s location, and her attempts to locate her mother.

11. The applicant was also inconsistent in describing what happened after she and her mother were released from the police detention.  She initially stated that she learned her mother was burned to death the next day but her husband prevented her from going to see her mother’s body.  The letter the applicant submitted from the village Sarpanch also confirms that no relatives could be contacted or attended after the applicant’s mother was burned.  However in her review application the applicant stated the opposite, that she had gone to see her mother’s burned body in her village.

12. The Tribunal also has significant plausibility concerns about the applicant’s story of her 2013 return. Some of the more minor concerns put to the applicant, such as the why the police would frequent a room to mistreat and interrogate the applicant and her mother, in which there was urine and excrement, was well addressed by country information submitted by the applicant’s representative and the Tribunal no longer considers this a concern. The Tribunal also agrees with the representative’s post-hearing submission that not all the Punjabi police may be aware that the police themselves had killed the applicant’s father in 1991 and therefore it was not implausible that police officers may still question the applicant and her mother about the whereabouts of her father despite other police being responsible for his death many years ago.  The Tribunal further agrees that the absence of any official confirmation by the authorities of the applicant’s father’s death increases the likelihood that this information may be withheld from or not known by other members of the police force.  The Tribunal also accepts the applicant’s representative’s submissions that being provided with assistance by a police officer known to the family would not diminish the applicant’s and her family’s fear of the police if she and her mother had been recently attacked by other officers, so that the applicant and her husband would then try to avoid detection by the police in Delhi.

13. However more substantial concerns regarding how and why the police would so quickly apprehend the applicant and her mother, utilising a large number of resources including more than six officers, to detain, interrogate and mistreat them over a lengthy period have not been sufficiently addressed. As put to the applicant her father had been killed by police in 1991, over 20 years earlier; her mother had led an impoverished reclusive life in a small village presenting as a ‘mad woman’, and considered by her local community and relatives to be in very poor mental health; while she herself had not been of any prior interest to them while she lived in India and had not been resident in India since early 2009.

14. The applicant’s representative has submitted that “the wife and daughter of someone regarded as a “terrorist” would be exactly the type of persons who would attract the attention of the Indian security forces” and quoted a 2006 Minority Rights report[6] that families and friends of suspected militants were also targeted by police.  The Tribunal notes that the context of this quote in the report refers to the heightened conflict events between 1984 and 1995.  The representative also referred to a 2020 article[7] which describes horrific police abuses against poor and disadvantaged people suspected of involvement in criminal acts.

    [6] Minority Rights Group International, 2006, ‘Minority Rights and Conflict Prevention: Case Study of Conflicts in Indian Jammu and Kashmir, Punjab and Nagaland’ August.

    [7] CNN, 2020, ‘INDIAN POLICE USE VIOLENCE AS A SHORTCUT TO JUSTICE. IT’S THE POOREST WHO BEAR THE SCARS’, DECEMBER,  >

    The Tribunal accepts that family members of suspected Sikh terrorists could readily be targeted by the police in Punjab.  The Tribunal also accepts that the police can and do commit abuses and use excessive force.  However the Tribunal’s concerns are based upon the passage of time and the circumstances and profiles of the applicant and her mother that would seem to entirely negate any suspicions against them to warrant their detention and interrogation. In other words, it is highly implausible the police in another locale would descend so quickly on the applicant and her mother in her mother’s village and utilise so much time and so many personnel against them. This is particularly so given the applicant’s mother was well known in the village and the police were not unaware of her presence there over the many years since her husband’s death.  Further the applicant had lived in India for many years following the killing of her father without any overt police attention, had returned to India for a month in 2012 and experienced no attention from the police and had been in India for two or three weeks in 2013 without attracting any attention or interest from the police.  That the police would know that she was visiting her mother in her mother’s village and then take action against them is irrational.  The Tribunal’s doubts about this aspect of the applicant’s claim are substantially compounded by her inconsistencies in presenting it over the course of her visa and review application.

15. The Tribunal notes also that in the applicant’s STARTTS report her history is presented to include the killing of her father and mother and a childhood injury to her, but has no mention or any reference to her claim of being abducted and seriously assaulted by the police in 2013. This indicates she did not speak of this to her clinical psychotherapist.  While there may be many reasons a person may withhold highly sensitive and personal information from a counsellor the applicant’s disclosure of other traumatic history raises questions why there was no mention of the claimed 2013 events directed at her. 

16. In view of the substantial concerns the Tribunal has regarding this claim the Tribunal does not accept that the applicant was abducted, questioned, and assaulted by police when she returned to India in 2013.

    Applicant’s Mother’s Death

17. The applicant has maintained that her mother was burned to death by police in India.  She has also provided a letter from the Sarpanch and villagers of [Village 1] village.  The Tribunal notes that in an interview with departmental officers in 2015 the applicant refers to both her parents being deceased albeit but not indicating anything regarding the circumstances of their deaths.  In her subsequent initial Protection visa application statement the applicant stated that the police burned her mother to death because they were fearful of her mother lodging a case against them.  The applicant has subsequently stated her mother’s death to be the result of the police detaining then releasing her in February 2013 but has not indicated what may have triggered the police actions to later set her mother alight.

18. The Tribunal therefore has concerns about the credibility of the applicant’s claims the police would take such extreme action against an older woman who had been living a secluded life in a small village for over twenty years.  The only reason voiced by the applicant, that the police were fearful of her mother lodging a case against them, seems fanciful given the time that had passed and her mother’s disempowered state.  It is difficult to understand how the police would be fearful of the applicant’s mother, given the circumstances claimed by the applicant indicate the complete opposite.

19. Numerous articles[8] describe the potentially dire situation for widows in India. In the Punjab region widows are said to be referred to by the pronoun ‘it’ instead of ‘her’ after the death of a husband, or commonly called ‘randi’, a term for a prostitute.  They are considered bad luck and responsible for the death of their husband. Widows are also expected to give up their cultural, social and family life and live a deprived and cloistered ‘spiritual’ life.  They can be subject to sexual predation by men if they remain unmarried.  There are also historical traditions and expectations, which continue albeit infrequently, of widows being either voluntarily or forcibly burned to death along with their deceased husband on his funeral pyre.  The 2020 DFAT report refers to this practice, known as sati or suttee, being illegal but continuing in rural areas.

    [8] See for example Indian Legal Solution, Lalwani C., “The position of widows has changed or not?”,

20. As stated the Tribunal has concerns about the plausibility of the applicant’s claims her mother was burned by police a day after being released from their custody.  However balanced against this is the information the applicant provided in a different context in 2015, that her mother was deceased by that time; the history she provided to her psychoanalyst;  the reasonable consistency of the core of her claim, namely that her mother was burned to death; the letter stated to be from the Sarpanch and other villagers of her mother’s village; and the available country information about the highly vulnerable situation for widows in Punjab. There is inherent implausibility in the applicant’s claim the police were fearful of her mother however the Tribunal acknowledges that there may be other reasons, deriving from her mother’s behaviour, background and widowed status, which may have motivated men, perhaps police, to act against her in this way.  Such abuses may happen for reasons which are not known by a victim’s family. Therefore, in view of the supportive evidence, and despite its concerns, the Tribunal cannot confidently make a finding that the applicant’s mother was not burned to death by men who were possibly police.  The Tribunal therefore gives the applicant the benefit of the doubt that this happened.

    Applicant’s Mental Health

21. The applicant has provided mental health information from her GP and her clinical psychotherapist that she suffers from symptoms of PTSD, anxiety and depression and that she is on strong medication to address her symptoms.  The Tribunal accepts that the applicant is suffering from mental health disorders and is on a high dosage of prescribed medication.

    Fear of Harm in India

22. The Tribunal has accepted that the applicant’s father was part of a Sikh separatist organisation who was detained and mistreated by police and eventually killed by police in 1991.  The Tribunal has also accepted that the applicant is Sikh and in an inter-faith marriage with her husband who is Hindu. The Tribunal accepts that their marriage was opposed by some in the applicant’s family and by some in the wider Sikh community.  The Tribunal accepts that on their wedding day her husband’s party was violently attacked by Sikh aggressors. The Tribunal accepts that the applicant’s mother was burned to death by men, who were possibly police.  The Tribunal accepts that the applicant is in poor mental health and suffers from disorders.

23. The available country information as outlined above indicates that there can be a high level of intolerance to inter-faith marriages in India and that the situation has deteriorated further under the current nationalist government.  The information shows that inter-faith marriages can provoke violent responses amongst relatives and within religious communities.

24. The applicant and her husband’s marriage was received with animosity amongst the applicant’s Sikh relatives and her community.  It also provoked a violent reaction from armed Sikhs on her wedding day. Although this occurred in 2008 the Tribunal has noted that tolerance for inter-faith marriages has only worsened since the applicant and her husband’s departure from India in 2009.  Therefore, if the applicant and her husband return to India now or in the reasonably foreseeable future it is likely they will again meet with opposition from some in the applicant’s Sikh family and community. The Tribunal notes that Sikhs such as the Nihang can often be armed with swords or rifles and that armed Sikhs were amongst the attackers on the applicant’s husband’s wedding party. The Tribunal further notes that the applicant is known amongst her relatives and her community as the daughter of a Sikh martyr who fought and agitated for a separate Sikh nation, and who was killed by government police.  The Tribunal accepts that this would heighten the opposition of others towards her for marrying a Hindu. The Tribunal also considers that the applicant’s mental health issues make her more vulnerable to encountering harm and to exacerbating adverse reactions from others, in that her judgment and alertness is compromised to some extent by her disorders.  In view of all these circumstances and the applicant’s profile the Tribunal considers there is a real chance she will be seriously physically harmed by other Sikhs in Punjab because of her inter-faith marriage.  The Tribunal is not suggesting that all Sikhs will be opposed to her or want to cause the applicant harm but it considers there will be some who will be a real threat to her and take action against her.

25. The Tribunal considers that the risk of harm to the applicant exists in all parts of India given she will be in an inter-faith marriage and remain the daughter of a Sikh martyr wherever she is in India.  She will therefore be at risk of harm by extremist Sikhs or nationalist Hindus in other parts of India.

26. The Tribunal is satisfied that the harm the applicant fears in India is for the essential and significant reasons of her religion as a Sikh and her membership of a particular social group, namely persons in an inter-faith marriage.  The Tribunal is satisfied that the harm she fears arises out of systematic and discriminatory conduct in that it will be done to her selectively and intentionally.

27. According to DFAT’s report the police in India have a reputation for being corrupt and ineffectual. The Tribunal is not satisfied that the police would act to protect the applicant against harm from others, particularly given country information that they have sometimes been accused of just standing by during violent inter-religious or nationalistic conflict.  The Tribunal therefore considers that there is no effective state protection available to the applicant in India.

28. The Tribunal is therefore satisfied the applicant has a well-founded fear of persecution in India as defined by s.5J of the Act.

    Section 36(3)

29. Section 36(2) of the Act, which refers to persons in respect of whom Australia has protection obligations, is qualified by subsections 36(3), (4), (5) and (5A) of the Act. This means that where a non-citizen in Australia has a right to enter and reside in a third country, Australia will not have protection obligations in respect of that person if he or she has not availed himself or herself of that right unless the conditions prescribed in one of s 36(4), (5) or (5A) are satisfied, in which case the s 36(3) preclusion will not apply.

30. The Full Federal Court in MIMAC v SZRHU (2013) 215 FCR 35 held that the term ‘right’ in s 36(3) should not be restricted to a right in the strict sense which is legally enforceable. Rather, it should include the notion of a liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of enforcement; or a liberty, permission or privilege which does not give rise to any particular correlative duty upon the state in question.

31. The starting point for consideration of whether the applicant has a right to enter and reside in Nepal is the Treaty of Peace and Friendship between India and Nepal 1950 (the Treaty). Articles 6 and 7 of the Treaty are the most relevant for present purposes. These two articles concern the treatment to be given to the nationals of one country in the territory of the other. Importantly, Article 7 grants to Indian nationals in Nepal, and Nepalese nationals in India, ‘the same privileges in the matter of residence, ownership of property, participation of trade and commerce, movement and other privileges of a similar nature’.

1. Information contained on the website of Nepal’s Ministry of Home Affairs - Department of Immigration is to the following relevant effect:

   A citizen of India entering Nepal is required to show a document that proves their nationality. This can be either:

   • Valid Indian passport or

   • Election Card issued by the Election Commission.

2. The website of the Embassy of Nepal in India also notes that an Indian citizen over the age of 10 years travelling between India and Nepal by air would be required to show any of the following documents to establish his/her identity as an Indian citizen:

   • Valid Indian passport; or,

   • Voter ID issued by the Government of India.

   • Emergency certificate issued by the Embassy of India in Nepal.

3. The Tribunal notes that the applicant’s Indian passport expired in 2018 and that she has not renewed it.  The applicant therefore lacks the required documentation to be able to travel to and enter Nepal from Australia.  The Tribunal accordingly is satisfied that she does not have a right to enter and reside in Nepal.

4. The Tribunal finds that the applicant is not excluded from Australia’s protection obligations by s 36(3) of the Act.

   Conclusion

5. For the reasons given above the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore the applicant satisfies the criterion set out in s 36(2)(a).

   DECISION

6. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

   Melissa McAdam
   Member

   
   

   Attachment  -  Extract from Migration Act 1958

   5 (1) Interpretation

   …

   cruel or inhuman treatment or punishment means an act or omission by which:

   (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

   (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

   but does not include an act or omission:

   (c)     that is not inconsistent with Article 7 of the Covenant; or

   (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

   (a)     that is not inconsistent with Article 7 of the Covenant; or

   (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

   (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

   (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

   (c)     for the purpose of intimidating or coercing the person or a third person; or

   (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

   (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

   but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   receiving country,  in relation to a non-citizen, means:

   (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

   (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

   …

   5H    Meaning of refugee

   (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

   (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

   (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

   Note:     For the meaning of well-founded fear of persecution, see section 5J.

   …

   5J     Meaning of well-founded fear of persecution

   (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

   (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

   (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

   (c)     the real chance of persecution relates to all areas of a receiving country.

   Note:     For membership of a particular social group, see sections 5K and 5L.

   (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

   Note:     For effective protection measures, see section 5LA.

   (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

   (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

   (b)     conceal an innate or immutable characteristic of the person; or

   (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

   (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

   (ii)conceal his or her true race, ethnicity, nationality or country of origin;

   (iii)alter his or her political beliefs or conceal his or her true political beliefs;

   (iv)conceal a physical, psychological or intellectual disability;

   (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

   (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

   (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

   (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

   (b)     the persecution must involve serious harm to the person; and

   (c)     the persecution must involve systematic and discriminatory conduct.

   (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

   (a)     a threat to the person’s life or liberty;

   (b)     significant physical harassment of the person;

   (c)     significant physical ill‑treatment of the person;

   (d)     significant economic hardship that threatens the person’s capacity to subsist;

   (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

   (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

   (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

   5K    Membership of a particular social group consisting of family

   For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

   (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

   (b)     disregard any fear of persecution, or any persecution, that:

   (i)the first person has ever experienced; or

   (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

   where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

   Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

   5L    Membership of a particular social group other than family

   For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

   (a)     a characteristic is shared by each member of the group; and

   (b)     the person shares, or is perceived as sharing, the characteristic; and

   (c)     any of the following apply:

   (i)the characteristic is an innate or immutable characteristic;

   (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

   (iii)the characteristic distinguishes the group from society; and

   (d)     the characteristic is not a fear of persecution.

   5LA Effective protection measures

   (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

   (a)     protection against persecution could be provided to the person by:

   (i)the relevant State; or

   (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

   (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

   (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

   (a)     the person can access the protection; and

   (b)     the protection is durable; and

   (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

   …

   36     Protection visas – criteria provided for by this Act

   …

   (2)A criterion for a protection visa is that the applicant for the visa is:

   (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

   (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

   (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (a); and

   (ii)holds a protection visa of the same class as that applied for by the applicant; or

   (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (aa); and

   (ii)holds a protection visa of the same class as that applied for by the applicant.

   (2A)A non‑citizen will suffer significant harm if:

   (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

   (b)     the death penalty will be carried out on the non‑citizen; or

   (c)     the non‑citizen will be subjected to torture; or

   (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

   (e)     the non‑citizen will be subjected to degrading treatment or punishment.

   (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

   (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

   (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

   (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

   …

   
   

Aum Waheguru Seva Mission website, The International Journal of Indian Psychology, Jamadar C, “Quality of Life Among Widows’, December 2015; Women’s Media Centre, 2012, ‘The ongoing tragedy of India’s Widows’, 22 June.