1715395 (Refugee)

[2021] AATA 3529

1715395 (Refugee) [2021] AATA 3529 (11 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1715395

COUNTRY OF REFERENCE:                   India

MEMBER:Genevieve Hamilton

DATE:11 August 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 11 August 2021 at 2:15pm

CATCHWORDS

REFUGEE – protection visa – India – religion – Sikh – imputed political opinion – Akali Dal supporter – gang fight – inconsistent evidence – delay in seeking protection – credibility issues – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5J, 36, 65, 424AA, 424A, 499

Migration Regulations 1994 (Cth), Schedule 2

CASES

SZBYR v MIAC [2007]HCA 26

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

BACKGROUND

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

2.    The applicant applied for the visa on 9 June 2017.  The delegate refused to grant the visa on 26 June 2017.  The applicant applied for review of the decision on 17 July 2017 and uploaded a copy of the Delegate’s decision with his review application. 

CRITERIA FOR A PROTECTION VISA

3. Under section 65(1) of the Act a visa may be granted only if the decision maker is satisfied that the criteria for the visa prescribed in the Act are met.

4.    The criteria for a protection visa are relevantly set out in s.36 of the Act.  An applicant must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c).  Generally speaking, they must either be a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on ‘complementary protection’ grounds, or be a member of the same family unit as such a person.

Refugee

5.    Refugee is defined in the Act.  A person is a refugee if they are outside the country of their nationality (of if they have no nationality, their country of former habitual residence) 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).  

6.    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.

7. The criterion in s.5J(1) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, but also imposes an objective standard, that there be a real chance the person would be persecuted. A 'real chance' is one that is not remote or insubstantial or a far-fetched possibility: Chan Yee Kin v MIEA (1989) 169 CLR 379.

8.    The persecution must involve serious harm such as a threat to the person’s life or liberty or significant physical harassment or ill treatment, significant economic hardship that threatens their capacity to subsist, or denial of access to basic services or capacity to earn a livelihood of any kind, where the denial threatens their capacity to subsist (ss 5J(4) and (5)).

9.    A person does not have a well-founded fear of persecution if effective protection measures are available to them in the receiving country (ss 5J(2) and 5LA). 

1. A person does not have a well-founded fear of persecutionif the person could take reasonable steps to modify their behaviour to avoid persecution (s.5J(3), which also gives examples of types of modifications that are not required, such as concealing one’s religion, political opinion, race or sexual orientation). 

2. In determining whether the person has a well-founded fear of persecution, any conduct engaged in by the person in Australia is to be disregarded unless they satisfy the Minister that they engaged in the conduct for a reason other than to strengthen their claim to be a refugee (s.5J(6)).

Complementary Protection

1. If a person is found not to meet the refugee criterion in s.36(2)(a), they may still be a person to whom the Minister is satisfied Australia has protection obligations if there are substantial grounds to believe that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm: s.36(2)(aa).  S.36(2A) defines significant harm as arbitrary deprivation of life, carrying out of the death penalty, torture, or cruel, inhuman or degrading treatment or punishment. 

CLAIMS AND EVIDENCE

1. In his protection visa application the applicant said he was born in Amritsar, Punjab, India on [date], and is an Indian citizen.  His parents are also Indian citizens.  He had never been a citizen of any other country and he said he had no right to enter or reside in any other country.  He speaks, reads and writes Punjabi.  His ethnicity and religion is Sikh.  His parents and two younger siblings, all born in Amritsar, live in India, and he contacts them several times a week.  He completed year 12 at [a] High School in Amritsar in [year].  He last arrived in Australia on [date] April 2013, travelling on an Indian passport which has now expired.  He came as a student.  His student visa was issued in New Delhi on 8 April 2013, valid until 30 August 2017, but it was cancelled on 31 October 2014.    

2. The applicant said he was currently in immigration detention [when] the application was being made.  He had never been convicted of a crime nor was he the subject of any criminal investigation. 

3. Asked why he left India the applicant said he feared persecution and death.  Asked what he thought would happen to him if he returned to India he said he had a fear of death.  He said he had been illtreated by the police in his home country.  He had been politically pressured not to make a complaint.  He tried to move to Uttar Pradesh but it did not work out.  Asked if he thought he would be harmed he said he had already been through persecution and if he returns this time he fears for his life.  Last time he tried to seek help from the police and the Government authorities but none of them helped him.  He said he was trying to get police reports and additional documents from India and his parents would send them as soon as possible.  No interpreter was used to complete the application.

4. A protection visa interview was held on 20 June 2017, in English at the applicant’s request.  The applicant confirmed he had no other claims.  It is stated in the Delegate’s decision that the applicant’s judicial review of his visa cancellation was completed in May 2016, and that the applicant was detained by Victoria Police on [date] June 2017. 

5. A hearing of the Tribunal was held on 28 July 2021.  The applicant did not request an interpreter and the hearing was conducted in English. 

FINDINGS AND REASONS

1. Based on the information in his application the Tribunal finds that the applicant is a citizen of India.

2. The applicant’s claims are based on a violent incident he said occurred at a hospital.  At the protection interview with the case officer he described it as follows:

   Asked why he had applied for a protection visa the applicant [said] he got together with some guys for a party and one of them got sick and they wanted to get him admitted to hospital.  There was an argument with a gang at the hospital, it went very roughly and the gang members were shooting at the applicant and his friends as they were trying to run away.  The applicant did not tell his parents because he feared being punished.  The other guys were from a rich family.  Asked when this happened the applicant said it was in December 2010 but he could not remember the day or the date.

   He went to [Uttar Pradesh] in March 2011, to live with an aunt, because the gang was bothering him.  He tried to get into school there but they wouldn’t let him do year [number].  He tried other schools but it didn’t work out so he went back to school in Amritsar and lived in rental accommodation for a year.  He decided to go to Australia to study and get away from the problems. 

3. After a natural justice break with between the applicant and his agent the Case Officer asked the applicant for more information about the incident at the hospital. 

   The applicant said he was at a party and one of his friends was vomiting so they went to the hospital.   There was an argument there, and a big fight.  His friend was quite drunk (they were all drunk) and they had a dispute with the staff.  And then these guys started arguing with them.  They started shooting at the applicant and his friends, who tried to ran away, and they fired after them.  After a few days they reported it to the police, but the guy on the other side has strong political connections.  They support Congress and the applicant and his friends support Akali Dal.  The police didn’t do anything but tried to pressure the applicant and his friends.  Later the applicant and his friends were in that area again for a festival and it started up again and he and his friends were being hunted.  He ran away but they came after him.  So he went to Uttar Pradesh. 

4. At the hearing the applicant recounted the event very differently.  The Tribunal asked the applicant why he applied for a protection visa.  The applicant said that he was involved in a fight at the hospital.  The owner of the hospital is very political.  The applicant said “we started fighting and they were looking for us”.  He moved to Uttar Pradesh where his aunt was living and they followed him.  Asked why someone was following him he said they are obsessed with him.  When he came to Australia he thought he had left everything behind, he has never been back. 

5. The Tribunal asked the applicant further about the incident at the hospital.  The following exchange took place:

   The applicant said he and a bunch of guys were having fun, and one got sick.  They went to the hospital and had an argument with the management there.  They got into a rage and started smashing things.  The owner of the hospital called the police.  The police came and chased them, shooting at them. Two of the applicant’s friends were caught and had to pay huge money to get let out.  The applicant couldn’t afford to do this so he went to another state. 

   The Tribunal observed that this account was very different from what he had said at the interview, which was that the fight was with a gang of people at the hospital and they did the shooting.  The applicant said those guys followed him to Uttar Pradesh.  The Tribunal asked the applicant who he was referring to as “those guys”.  The applicant said they were probably with the owner.  The Tribunal noted that the applicant had just said it was the police who chased him and his friends.  The applicant said the owner of the hospital called those guys and they called the police.  The Tribunal asked the applicant why the police were shooting, the applicant said it was because he and his friends were running away.  The Tribunal put to the applicant that in his account to the case officer he had suggested that the police only became involved some days later when someone reported to them, about the fight and the shooting.  The applicant said that was what he recollected at the time.  

6. The Tribunal does not accept that this incident occurred.  In one version the fight was with a gang, who started shooting.  It was reported to the police days later, but the police didn’t do anything.  In the other version the police were called to the hospital and it was they who were shooting and chasing, and the applicant’s friends were arrested.  This was discussed at the hearing and the applicant was unable to explain it except to say that what he said at the interview was what he recollected at the time.  However, the two versions are too different to be reconciled. 

7. The account of the incident given at the interview is not adverse information within the meaning of s 424A or 424AA, although whether that account would have led to a positive finding of protection obligations is another question.  As the High Court held in SZBYR v MIAC [2007], inconsistencies of themselves do not constitute adverse information.   

8. Reinforcing the finding at paragraph 23 is the fact that the applicant did not know when the incident at the hospital occurred.  At the interview the applicant said it was at the end of 2010.  At the hearing the Tribunal asked the applicant when it happened. The applicant said it was 2011 or 2012.  The Tribunal asked the applicant why he did not know the date more precisely.  The applicant said we don’t pay attention to things like that.  The Tribunal considers it implausible that the applicant was unable to date with more precision such a dramatic event involving many parties. 

9. Various claims were made by the applicant of being followed, of people coming to his home or threatening him or his parents over the phone, as a result of the incident at the hospital.  At the interview the following exchange took place:

   The Delegate asked the applicant why this person was still after him.  The applicant said it was because they had a major argument.  People grow up in gangs where he comes from.  The other guys have sold out and support politicians. 

   The applicant said he did not have any trouble while he was in Uttar Pradesh. 

   The applicant was asked how the gang got his phone number.  He said that maybe his friends gave it to them.  He said they warned him that if he didn’t come back to India they would kill his brother.  He contacted his parents and they said stay in Australia and we will see what happens.  Asked whether his parents called the police the applicant said they went to the police station and made a statement but after about three weeks nothing had happened, because the gang has strong supporters in politics, and the politicians pressure the police to change things.

   Asked what would happen if he went back to India the applicant said they would go after him, and do something bad, maybe kill him.  Asked if anything had happened in the previous 12 months the applicant reiterated that the gang had gone to his parents’ and threatened them.  He said if he went back the gang would prevent him from going to Uttar Pradesh and find him anywhere.

   The case officer put it to the applicant that it had been about 7 years since the fight occurred.  The applicant said even now they are coming to his home.  If he goes to Uttar Pradesh again they would find out from his friends.  Anyway if he goes back to India he will be expected to stay with his parents. 

   The applicant said the gang was well known, its leader is [name deleted], and one of the is in gaol because he “killed one of our guys” a few months ago.  If he goes back he will be targeted even more, because he is Sikh and supports Akali Dal.  They might even make false reports about him.  The police would be made to eliminate him.  The Case officer observed that on the applicant’s own evidence a gang member had been gaoled.  The applicant said that he would be killed before anyone waws gaoled.  The police benefit from the Congress Party and get workers to do the dirty work.  The Case Officer observed that the applicant was not political, and was therefore not a threat.  The applicant said it doesn’t matter if a person is well-known or not, if they want to “clean you” they can. 

10. At the hearing the following exchange took place:

    The applicant said he wasn’t arrested because he ran away and he confirmed he had no dealings with the police.  He went to another person’s house for a few days and then he went home.  They had been asking about him in the village so his parents sent him to Uttar Pradesh.  A few people followed him to Uttar Pradesh and asked about him.  The Tribunal asked the applicant who they were.  The applicant said he did not know.  But he recognised them.  He later confirmed that he did not know who the leader of the gang was. 

    The Tribunal put to the applicant that nothing further happened in the time before he left India.  The applicant said he wasn’t really living at home.  He went to a nearby village.  The Tribunal put to the applicant that if people could find him in Uttar Pradesh they could find him in a nearby village.  The applicant did not comment on this. 

    The Tribunal observed that this was all about 10 years ago.  The applicant said there were a few further incidents.  They went to his parents’ house and shouted at them and threatened that if the applicant returned they would take him from the airport.  This happened a few times.  The Tribunal asked the applicant when this happened.  The applicant said it was a few years back.  The Tribunal asked the applicant if he knew what dates this happened.  The applicant said it was 3 or 4 times.  The Tribunal observed that the applicant’s parents could have recalled the dates, and if they had reported it to the police they would have some record of this.  The applicant said there were no records. 

    The Tribunal asked the applicant if he ever got a threatening call.  The applicant said not, they would not have his number.  The Tribunal put to the applicant that he had told the case officer in his protection interview that he had received a telephone threat.  The applicant said yes, this happened at the time he was planning to go back to India.  Everyone knows what’s happening, they had probably heard that his visa had been cancelled.  The Tribunal asked how, in that case, his enemies got his number.  The applicant was not able to answer this question.  He said his parents reported the threat to the police.  The Tribunal asked if the applicant had any further contact since then.  He said he hadn’t. 

11. As the Tribunal does not accept that the incident at the hospital occurred in the first place, it does not accept that the applicant or his family was ever followed or visited or threatened. 

12. In assessing the applicant’s claims the Tribunal gives weight to the fact that the applicant had been in Australia for about 4 years before making a protection visa application, and only made one when the option was suggested to him as a process following his being apprehended and detained without a visa.  The period of time elapsing between an applicant’s arrival in Australia and the making of the application for refugee status is a legitimate matter to take into account when assessing the genuineness, or at least the depth, of the applicant’s fear of persecution. 

13. At the protection interview the applicant said:

    When his visa was cancelled and after the MRT and the Court case he thought he would go back to India but somehow they found out he was going back (this was around March 2016).  The guy rang him and said you’re coming back, we will hit you or do something bad.  So the applicant decided to stay in Australia.  Later, the guy came to the applicant’s parents’ home and said if the applicant came back to India he would kill him. 

14. Asked why he did not apply for a protection visa when he came to Australia, if he had all these problems in India, the applicant said it was because he had a student visa.  The case officer observed that a student visa was only temporary.  The applicant said he didn’t know that there was a protection visa, he thought he would complete his studies and see what happens.  Then the police caught him in [a named suburb] and he was put into detention.  The Immigration officers told him he could apply for a bridging visa or a protection visa. 

15. At the hearing the applicant said his student visa was to study [a degree] at [a named college], he found Lab hard and tried to change course but they wouldn’t let him.  The Tribunal asked the applicant why he had not applied for protection sooner.  The applicant said he already had a student visa, and thought he would be able to stay permanently.  It was not in his mind to apply for protection.  The Tribunal observed that his student visa had been cancelled.  The applicant said that after this he appealed, but he missed the hearing.  He confirmed that he knew he had no lawful status when he was apprehended by the Victorian Police. 

1. The Tribunal put it to the applicant that it might be perceived that he only applied for protection to extend his stay because he was detained.  The applicant said it had not been on his mind to apply for protection before that.  The Tribunal does not consider this explanation persuasive.  Refugee status is a matter of common public knowledge in Australia and if the applicant had a fear of returning to India it should have come to his mind to enquire whether that was a way of regularising his status.      

2. Noting what had transpired at the interview (para 20 above), the Tribunal asked the applicant if his fears had anything to do with religion or politics.  The applicant said it was not to do with religion.  He said “they” are political, not him.  The Tribunal put to the applicant that the country information indicated that there were only isolated and minor instances of Sikhs and Akali Dal supporters being harmed.  The applicant did not disagree with this. 

3. 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.  The DFAT Country Information Report (2020) includes the following information.   

   Sikhs

   3.62 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).

   3.63 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.

   3.64 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.

   3.65 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.

   3.66 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. 3.67 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.

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

4. DHA Country of Origin Information Services – Common Claims India 31 March 2021 contains the following information about Akali Dal:

   The Akali Dal was founded in 1920 as a representative body to advocate for Sikh rights in British India. Post-independence, the Akali Dal or Shiromani Akali Dal (Supreme Akali Party) emerged as the main political rival to Congress in Punjab, particularly following the creation of a Sikh majority state in 1966. The party divided into factions in the 1980s and has since split further into rival parties. The major faction is the Shiromani Akali Dal (Badal), which was the senior coalition partner in government with the BJP in Punjab before losing power to the Congress Party in state assembly elections held in early 2017. Shiromani Akali Dal workers clashed with Congress and Aam Aadmi Party workers during the February 2017 Legislative Assembly election in Punjab. There was also poll violence involving Shiromani Akali Dal supporters during the 2019 general election. Prior to the 2019 election, the Shiromani Akali Dal and the BJP entered into a seat sharing arrangement in Punjab; the Shiromani Akali Dal won only two of the ten seats it contested.318 In August 2020, the president of a rural unit of Youth Akali Dal (YAD) was shot and killed while participating at a tree plantation drive at a shrine.319 The victim’s father was a Shiromani Akali Dal loyalist, and 17 months prior his elder brother had been killed in a dispute over political posters with a rival Congress party group.

5. The applicant is Sikh but has not claimed to be a Sikh activist.  The Tribunal accepts that he supports Akali Dal, but he does not claim to be a member of the Party or active in politics in any way.  The country information indicates that violence against Sikhs in general, and Akali Dal supports, is rare.  Any prospect of harm to the applicant due to his religion/ethnicity or political opinion in the reasonably foreseeable future is both remote and speculative. 

6. Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant faces a real chance of serious harm for any s.5J(1) reason.  He therefore does not have a well-founded fear of persecution as required by s.5J(1).  The Tribunal finds that the applicant is not a refugee as defined in s.5H(1). 

7. The applicant was given an opportunity at the interview and at the hearing to put forward all his claims.  At the hearing the applicant said he has been in Australia for 9 years and does not have a future in India.  However, he did not make any additional claim to fear significant harm.  As the Tribunal has not accepted the factual basis of the applicant’s claim to fear harm in India, the Tribunal is therefore not satisfied there are substantial grounds to believe that as a necessary and foreseeable consequence of being removed from Australia to India, there is real risk that he will suffer significant harm.

CONCLUSION

1. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) or s.36(2)(aa).

2. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

DECISION

1. The Tribunal affirms the decision not to grant the applicant a protection visa.

Genevieve Hamilton
Member