1803015 (Refugee)

[2020] AATA 645

1803015 (Refugee) [2020] AATA 645 (6 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1803015

COUNTRY OF REFERENCE:                   India

MEMBER:Paul Millar

DATE:6 January 2020

PLACE OF DECISION:  Sydney

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

Statement made on 06 January 2020 at 1:30pm

CATCHWORDS

REFUGEE – Protection visa – India – Federal Court remittal – fear of harm from Indian police and Sikh extremists – credibility concerns – delay in lodging protection application – amend his story to achieve desired visa outcome– decision under review affirmed

LEGISLATION

Migration Act 1958, ss 36, 65, 424,499

Migration Regulations 1994, Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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).  The applicant, who the Tribunal finds to be a citizen of India, applied for the visa on 10 July 2014 and the delegate refused to grant the visa on 27 November 2015.[1]  The Tribunal (differently constituted and referred to in this decision as ‘the first Tribunal’) affirmed this decision on 15 December 2016.[2]  The applicant sought review of that decision in the Federal Circuit Court.  [In] January 2018, the Court ordered that the case be remitted to the Tribunal for reconsideration.[3]  The Court found that the Tribunal failed to consider certain claims made in affidavits that the applicant submitted to the Department, claims to the effect that his family was attacked.[4]  The applicant appeared before the Tribunal on 7 November 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.  The applicant was represented in relation to the review by his registered migration agent who attended the hearing.

   [1] The Tribunal’s finding on citizenship is based on the applicant's Indian passport which he produced at the hearing.

   [2] See Administrative Appeals Tribunal, Migration and Refugee Division, Case Number 1517599 (15 December 2016).

   [3] See folio 120 of the Department file being the order made by the Court.

   [4] Those affidavits appear at folios 93A – 93J of the Department file.

   CRITERIA FOR A PROTECTION VISA

2. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant 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.

3. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

4. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

5. 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 a protection 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 the applicant 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’).

6. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.[5]

   [5] DFAT has released a country information assessment for India, but it is not relevant to the grounds on which this review has been determined.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. According to his evidence to the Department and the Tribunal, the applicant claims protection on the ground that he is a follower of the Deri Sacha Sauda (‘the DSS’).[6]  The Tribunal found the applicant to be an unimpressive witness.  He persistently gave indirect responses to the Tribunal’s questions, to the point of being evasive. In addition to his poor demeanour as a witness, the Tribunal holds concerns about the credibility of his evidence.  Before discussing those concerns, it is necessary to first recite the evidence given by the applicant at the Tribunal hearing.

   The applicant’s evidence at the Tribunal hearing

   [6] The applicant's evidence to the Department and the Tribunal comprises the contents of the protection visa application forms; his written statement (at folios 91-93 of the Department file); his evidence at his interview with the delegate for which there is an audio recording on the Department file and to which the Tribunal has listened; his evidence at the hearing before the first Tribunal for which there is an audio recording and to which this Tribunal has listened and his evidence at the hearing before this Tribunal.

8. To the Tribunal, the applicant gave the following account of events on which his protection claims are based.  The applicant is a Sikh who comes from a village in the district of Jalandhar.  He completed high school in [year]. After that he worked on farm land owned by his family and land owned by others.  In early 2007, for the first time, the applicant attended a DSS temple in the city of Sirsa with some friends who told him that it was a good thing to do.  This temple was located approximately 270 kilometres from the applicant’s village and it took approximately three hours to travel there.

9. The applicant was pleased with what he heard at the temple and he thought that the teachings were good, in particular, teachings about helping those less fortunate.  The applicant returned to the temple a number of times after that.  He thought that, in total, over the two year period from his first attendance and until his departure from India in early 2009, he attended the temple approximately 15 or 16 times.  Sometimes the applicant would stay overnight and, the following morning, serve breakfast and help those present.  The applicant kept his attendance at the temple a secret from his family.  He did not attend the temple more often because of difficulties he encountered from other Sikhs who disapproved of the DSS (matters discussed below).

10. The applicant saw himself as a follower of the DSS, but not a member.  This was because a follower would need to stay at the temple for 10 or 15 years to become a member.  At some stage after he began attending the DSS temple, the applicant began receiving telephone calls from people telling him that the temple was not the right place for Sikhs and that he should stop attending.  In early 2008, the applicant was with friends and other DSS followers, returning home after visiting the DSS temple, when a group of armed Sikh extremists appeared and attacked them.  A number of the people with the applicant ran away, but, the applicant was in the front of the group and the Sikh extremists beat him.

11. The applicant fell unconscious and regained consciousness in a medical clinic. There he received treatment and then returned to his family home.  His parents saw bruises on his [body] and, by that means, learned that he had been attending the DSS temple.  They then went to the police station to lodge a complaint about the incident. However, the police did not take any action and, instead, questioned the applicant as to why he was attending the DSS temple. 

12. From this time, whenever something happened in the applicant’s village, the police would come, apprehend and detain him at the police station.  On two such occasions, the police held him for two days and, during that time, tortured [him].  On the other occasions, the applicant would be held for a few hours and released after money was paid to the police.  They would tell the applicant not to attend the DSS temple.  They also tried to involve him in false cases, but, to the applicant’s knowledge, no case has been actually taken out against him.

13. Due to this harassment, the applicant stopped living in his family home permanently. When he felt that the situation in his village was dangerous for him, he would go and stay at the homes of relatives in other areas for approximately 15 days or one month.  He would only go back to his family home when he thought it was safe to do so.  In early 2009, the applicant again encountered Sikh extremists.  He was with a group of friends in another town about to return home after visiting a DSS temple.  The Sikh extremists approached the group to attack them, but they were all able to run away without being assaulted, including the applicant.  The applicant’s fear of these Sikh extremists was another reason why he did not stay permanently at his family home.

14. The applicant married his wife in October 2008 and came to Australia with her in April 2009.  Although the applicant’s family were initially upset when they found out in early 2008 that the applicant had been attending a DSS temple, they became followers of the DSS themselves.  Before the applicant left India, on one occasion, they all went to the DSS temple together as a family.  After the applicant came to Australia, his family continued to attend the DSS temple right up until the present time.  The applicant’s adoption of the DSS and the adoption of the DSS by his family caused difficulties for them after the applicant left India.

15. Since his arrival in Australia, police have gone to his family home a number of times threatening his family and asking them where he is.  They started doing this in approximately June 2009 and they have continued to do so.  In 2014, the police took out a number of false cases against the applicant’s father and, in 2018, took out a false case against his [brothers]. All cases are continuing and the case against his brothers has recently been in a superior court.  In May 2018 the police arrested and detained the applicant’s brothers for four or five days in relation to the false case against them. Apart from that incident, he thought that they had been detained and held overnight on two other occasions. 

16. More generally, just as the police did with him, when something happened in the village, the police would come to apprehend his brothers.  In addition, the Sikh extremists he feared in India also caused harm to his family. This included threatening telephone calls to the family asking about him. In May 2014, a group of them went to the applicant’s family home, damaged property and threatened the family. Prior to this incident, Sikh extremists approached the applicant’s father, punched and beat him. After the incident of May 2014, these extremists would return on occasions threatening the family and neighbours.

    Credibility concerns

    Evidence about the location of the attack in 2008

17. At his interview with the delegate, the applicant was questioned as to the location at which he was attacked by Sikh extremists in 2008.  To the delegate, the applicant said that the location of the attack was near the city of Chandigarh, ‘next to Haryana’.  He said that the location of this attack was ‘quite far’ from his home.  The applicant then said that as soon as he came out of the ‘dera’, which he said was in Haryana, the incident occurred.  The delegate asked the applicant to confirm where he was attacked and, also, why he was at this location near Chandigarh.  In his responses, the applicant said that he was attacked at a location that was approximately 15 kilometres from the ‘dera’ and near Chandigarh where he got off a bus.  He then said that he went to the ‘dera’ in Sirsa and as he came out of the ‘dera’ his attackers might have been keeping an eye on him. 

18. From this evidence, the delegate understood the applicant to be claiming that he was attacked at a location that was near the city of Chandigarh and 15 kilometres from the DSS temple in Sirsa.  In the decision to refuse the application, the delegate disbelieved this claim because, according to country information, Sirsa, which is located in Haryana, is some 247 kilometres from Chandigarh.[7]  The delegate stated that it was impossible for the applicant to have been attacked near Chandigarh if, at the same time, he was only some 15 kilometres away from the DSS temple in Sirsa.

    [7] See folio 94 of the Department file.

19. To the first Tribunal, the applicant said that he would attend a DSS temple in Sirsa ‘quite a lot’.  The first Tribunal asked the applicant where he was attacked by Sikh extremists on this occasion in 2008.  In response, the applicant said that he was attacked near Chandigarh, approximately 15 kilometres on his way home from the DSS temple.  Further in the hearing, the first Tribunal repeated that account to the applicant and he said that it was correct.  He added that, at the time of the attack, he was going towards Chandigarh.

20. The first Tribunal put to the applicant country information to the effect that the town of Sirsa was 247 kilometres from Chandigarh and, therefore, he could not possibly have been attacked 15 kilometres from the DSS in Sirsa if this location was also near Chandigarh.  In response, the applicant again said that he was attacked approximately 15 kilometres from Sirsa and that he was going towards Chandigarh. 

21. In submissions dated 29 October 2019, the representative submitted, on behalf of the applicant, that the DSS has more than 42 Ashrams or temples in different states including Haryana and Punjab.  The representative submitted that, in addition, the DSS has more than 128 centres where weekly gatherings of followers take place.  The representative claimed that all of these ashrams and centres are known as ‘[DSS] Sirsa’ and then ‘the respective name of the place of the ashram or centre’.  The representative submitted that this ‘maintain[ed] one identity of the dera, as the headquarters of the dera is located at Sirsa’.  The representative then submitted that the applicant had always claimed that he was ‘coming from ‘[DSS] Sirsa’ centre in Panchkula Haryana when he was attacked’.  It was submitted that the town of Panchkula is 15 kilometres from Chandigarh. 

22. To this Tribunal, the applicant said that in 2007 he began attending a DSS temple.  When asked for the location of this temple, the applicant said that it was in Haryana.  When asked if it was in a particular town or village, the applicant said it was in the city, the name of that city being Sirsa and the district being Haryana.  When asked how long it took him to travel from his home to that temple, the applicant said that the temple was 270 kilometres from his local area.  When asked if he attended any other DSS temple, the applicant said that he did not.

23. The Tribunal asked the applicant whether the cities of Sirsa and Chandigarh were close.  In response, the applicant said they were close because Haryana state was ‘after that’.  After he gave that evidence, the Tribunal asked the applicant how often he went to the DSS temple in Sirsa and he said that he attended on approximately 15 or 16 occasions.  Again, just as he did to the delegate and to the first Tribunal, in his responses to this Tribunal, the applicant was claiming to have attended a temple in Sirsa, that this place was near Chandigarh, when, according to country information, the distance between those two cities is approximately 250 kilometres.

24. When giving his evidence about being attacked by Sikh extremists in early 2008, the Tribunal asked the applicant where the attack took place.  In response, the applicant said that the attack occurred when he was returning from the DSS temple with friends and other followers.  The Tribunal again asked the applicant to name the location where the attack took place.  In response, applicant said the attack took place at Panchkula.  When asked what he was doing in that location, the applicant said that on that same day he had been at the DSS temple in Sirsa and he was returning home.

25. The Tribunal asked the applicant whether Panchkula was near his own home.  In response, the applicant said that Panchkula was ‘quite far’ from his home, but 15 kilometres from Sirsa.  When asked what he was doing in Panchkula and whether he was on the street waiting for a bus, he said that he had nothing in mind and the extremists must have been following him and decided that they wanted to attack him.  The Tribunal asked the applicant whether, at the time of the attack, he was on the road or waiting for a bus.  In response, the applicant said that he and his associates were ‘on the road’.  He then said that ‘whatever happened in Panchkula; Panchkula is in the centre away from Sirsa’.

26. At a later stage of the hearing, the applicant said that in January 2009 Sikh extremists again came to attack him while he was with some friends.  He said that they were returning from an ashram in [City 1].  The Tribunal asked the applicant what he had been doing in [City 1].  In response, the applicant said that there were many ‘of these’ institutions in every state and he was returning from one of their institutions in [City 1].  The Tribunal asked the applicant whether he was saying that, on this occasion, he had been attending a DSS temple in [City 1].  In response, the applicant said that in Sirsa was the main DSS temple, but they had other small places in every state run by DSS members.

27. When asked how many times he went to that particular DSS centre, the applicant said that he only went there once.  When asked if he ever attended any other DSS centres, he said that he attended only that centre (once) and the temple in Sirsa.  He then said that there was also a small branch in Panchkula and when ‘the incident’ happened he went there as well. When asked what incident he was talking about, the applicant said that he was referring to the incident in 2009. He said that the incident occurred approximately ten kilometres from [City 1].

28. The Tribunal then reminded the applicant that he had said that there was a DSS centre in Panchkula and he said that was correct.  The Tribunal asked the applicant whether he went to that centre and, in response, he said that he did when he was attacked.  When asked if he was referring to the occasion on which he was attacked in early 2008, the applicant said that was correct.  The Tribunal then asked the applicant whether, on that particular day, he had been to the DSS temple in Sirsa and the centre in Panchkula. In response, the applicant said that was correct because when he and the others came out of the centre in Panchkula, they got attacked.

1. The Tribunal finds all of this evidence to be inconsistent.  To the delegate, the applicant said that he was attacked near the city of Chandigarh, but, 15 kilometres from the DSS temple in Sirsa, some 250 kilometres from Chandigarh.   He has given the same account to the first Tribunal.  However, in the representative’s submissions dated 29 October 2019, a contrary account is advanced that, in fact, the applicant was attacked at a completely different location, namely, at a DSS centre in Panchkula, 15 kilometres from Chandigarh and, therefore, over 200 kilometres from Sirsa. 

2. Then, to this Tribunal, the applicant initially said that he attended a DSS temple in Sirsa and, at that time, made no claim to have attended any other DSS temple or centre.  While he said that the temple in Sirsa was 270 kilometres from his home, he also said that the cities of Sirsa and Chandigarh are close, which is contrary to country information.  In his initial evidence about being attacked in early 2008, the applicant said that the attack took place in the town of Panchkula which was 15 kilometres from Sirsa and that he was in that location because he was on his way home after visiting the DSS temple in Sirsa.  Then, in his subsequent evidence, the applicant claimed that, on this occasion, he had been at the DSS temple in Sirsa and a DSS centre in Panchkula. Further, he added that he had also attended a DSS centre in [City 1].

3. Pursuant to s.424A of the Act, by letter dated 13 November 2019, the Tribunal put these discrepancies to the applicant.  In response, by letter dated 26 November 2019, the representative submitted that all branches of the DSS are always ‘addressed’ with the word ‘Sirsa’.  Because the main ‘dera’ is addressed as DSS, Sirsa, out of respect and reverence, the word Sirsa is used at the end of the name of every DSS centre.  Followers, therefore, cannot imagine mentioning the DSS without the word Sirsa which, it was submitted, was synonymous with the DSS and all of its centres.  It was submitted that the applicant always maintained that he had been to the DSS Sirsa and then, while he had come out of the DSS centre at Panchkula, he was attacked.  He had always maintained that Panchkula was approximately 15 kilometres from Chandigarh.

4. The Tribunal rejects these submissions because, as discussed above, the applicant’s claim about being attacked after coming out of a DSS centre in Panchkula is a new claim and one only advanced at certain stages of his evidence mentioned above.  The Tribunal has set out in detail the applicant’s accounts to the delegate, the first Tribunal and this Tribunal as to where he was when attacked and beaten by extremists, as well as his purpose for being at that location.   The applicant’s evidence on this is replete with inconsistency as demonstrated above and that inconsistency does not relate only to the name of the centre he attended. The submission to the effect that followers of the DSS use the word Sirsa with respect to all centres they attend does not resolve the manifold inconsistency in his evidence.  Further, the applicant himself referred to DSS centres in at least two other locations and did not refer to them as ‘Sirsa’ or the ‘DSS Sirsa’.

   Evidence about false cases against the applicant’s family and their adoption of the DSS

5. At his interview with the delegate, the applicant made no claim that a false case had been taken out against his father.  This was the case even though, to the Tribunal, the applicant said that false cases were taken out against his father in 2014 and the interview with the delegate was held in October 2015.  Further, to the delegate, the applicant made no claim that his parents and brothers had become followers of the DSS.  At one stage of his evidence, he said that people were going to his family looking for him and that his brothers stayed at home in fear.  However, when asked by the delegate if his brothers were also involved with the DSS, the applicant said that ‘they do not go, they have no interest there, but, no one believes because [the applicant] used to go’.  Further, the tenor of the applicant’s evidence was that the difficulties his family were encountering from others were due to him and his involvement with the DSS.

6. The Tribunal acknowledges that not long after the interview was held, the applicant submitted various affidavits to the effect that his father and brothers were followers of the DSS and suffered harm on that ground.  However, the applicant could easily have given that evidence at his interview with the delegate, but, he advanced no such claims.  The first Tribunal questioned the applicant closely as to why he could not return to India and why Indian police would not afford protection to him. In response to those questions, the applicant mentioned people going to his family asking about him, his brothers being harassed and his family telling the extremists that they had no connection with him. 

7. He did not make any mention of false cases being taken out against his father in 2014.  Further, the applicant made no specific claim that his family suffered harm in India because they had become followers of the DSS.  When giving evidence about the occasion on which he was attacked by Sikh extremists in 2008 and when asked by the first Tribunal what happened after that incident, the applicant said that his family told him that ‘at the moment’ ‘they’ were targeting him, but, it would not be long before they targeted the family as well.  The first Tribunal asked the applicant whether his parents were Sikhs.  In response, the applicant said that they were Sikhs, but they do not go to the DSS.  When asked what they thought of him going to the DSS, he said that his parents only found out about that after his difficulties began.

8. Further in the hearing, the first Tribunal put to the applicant the contents of the affidavits he had submitted to the Department, according to which, his family were all followers of the DSS.  The first Tribunal put to the applicant that this appeared to be inconsistent with his evidence at the hearing to that point, which was to the effect that his family were not followers of the DSS.  In response, the applicant said that his family were not DSS supporters.  When he started attending, after that they still did not ‘go’ to the DSS, but, they started following.  However, they ‘never went there’.

9. The Tribunal finds this evidence to be inconsistent.  To the delegate, the applicant made no claim that his family had become followers of the DSS.  He made no claim that they had suffered harm on the basis of becoming followers of the DSS.  He made no claim that, in 2014, false cases were taken out against his father.  To the first Tribunal, the tenor of the applicant’s evidence was initially that his family did not follow the DSS.  Once reminded of the contents of the affidavits, he then said that they were, in fact, followers, but, did not attend a DSS temple.  To the first Tribunal, the applicant also made no claim that false cases were taken out against his father. Again, the tenor of his evidence was that any problems his family were having in India were due to him.

10. In stark contrast to this evidence, to this Tribunal, the applicant said that his family did become followers before he left India, attending the DSS temple with him, together as a family, on one occasion and continuing to attend the temple up until the present time.  To this Tribunal, the applicant’s evidence was that the harm they suffered after he left India was due to him, but, also, because of their own adherence to the DSS.  In that respect, he said that false cases had been taken out against his father in 2014; the family home was attacked by extremists in May 2014 and, prior to that, on one occasion, his father had been punched and beaten by extremists.

11. Pursuant to s.424A, by letter dated 13 November 2019, the Tribunal put these concerns to the applicant.  In response, by letter dated 26 November 2019, the representative submitted that due to the harm he encountered in India, the applicant suffers from anxiety and he was nervous at the hearing.  He is not good at communicating and narrating facts which sometimes creates confusion.  It was submitted that the applicant has nightmares about the incidents that he claims occurred when he was in India and this could affect his state of mind.  The Tribunal has considered the submissions but is not satisfied that the significant inconsistency in the applicant’s evidence in question can be explained by being nervous or anxious or the manner in which he gave his evidence.

12. It was submitted that the applicant ‘narrated everything’ to the delegate, but, that was not recorded because the delegate was biased.  In this respect, it was submitted that at the beginning of the interview, the delegate told the applicant that his account was false and would not be believed.  The representative otherwise repeated the account given by the applicant to the Tribunal on these various issues.  The Tribunal has listened to an audio recording of the interview with the delegate and no such statement was made by the delegate that the applicant’s evidence would not be believed.  The interview was lengthy and comprehensive. The applicant was given ample opportunity to advance to the delegate the claims he now makes to this Tribunal, but, he failed to do so.

13. With the submissions of 26 November 2019, the representative submitted a letter that he claimed was from the DSS centre that the applicant’s family attend.  In this respect, the representative provided a document dated [November] 2019 purportedly from a DSS centre in Hoshiapur and stating that the applicant’s parents and brothers had been followers at that centre since 2010.[8]  According to this letter, they all had ‘full faith’ in the DSS and had visited the DSS in Sirsa a few times.  While those claims are broadly consistent with the applicant’s claims about his family following the DSS, they do not explain or excuse the applicant’s evidence to the delegate that his family were not followers of the DSS.

    Evidence about attacks on the family by Sikh extremists

    [8] See folio 103 of the Tribunal file.

14. After the applicant had given evidence about the various incidents that caused him to leave India and the harm inflicted on his family by the police, the Tribunal asked him whether, after he left India to come to Australia, the extremist Sikhs who had been harassing him, inflicted harm on his family.  In response, the applicant said that in May 2014 extremists attacked the family home because they found out the family had been going to the DSS.  When asked how they attacked the home, the applicant said that they damaged some property and threatened the family. When asked if they beat members of the family, the applicant said that they pushed them around and made threats.

15. When asked if this was the only occasion on which Sikh extremists inflicted harm on his family, the applicant said that the incident that he had just mentioned made his family very scared. He said that prior to that, extremists had tried to threaten and scare them. When asked if the extremists came back to the family home after this attack in May 2014, the applicant said that the police were Sikhs who got the family in false cases.  The Tribunal asked the applicant whether extremists returned to the family home after the attack in May 2014. In response, the applicant said that they did come back after that threatening the family and neighbours. 

16. The Tribunal asked the applicant whether, apart from the incident in May 2014, the family was ever attacked on any other occasion. In response, the applicant said that because the extremists found out that the family was in the DSS, there was another occasion, prior to May 2014, in which his father was punched and beaten up.   The Tribunal put to the applicant that according to affidavits he submitted to the Department, made by his father, a neighbour and an uncle, his family members were seriously beaten by Sikh extremists who came to their home in May 2014.

17. In this respect, in his affidavit, the applicant’s father said that the extremists, on this occasion, ‘severely’ beat him and the applicant’s brothers who were left unconscious and suffered ‘multiple fractures’.  Identical claims were made by the applicant’s uncle in his affidavit. The family neighbour, according to that person’s affidavit, saw the extremists ‘mercilessly beating’ the applicant’s father and brothers. The Tribunal put to the applicant that this was inconsistent with his evidence to the Tribunal, when asked if family members were beaten on this occasion, that they were ‘pushed around’ and threatened. The applicant did not directly respond to this concern. He said that family members were pushed around, a lot happened, neighbours gathered, his brothers were frightened, a lot of damage was done, his father was pushed around and the family were scared after this incident. The applicant failed to account for this discrepancy.

18. The Tribunal put to the applicant that in the affidavit from his father, it was claimed that the family had been ‘brutally attacked twice in the past by Sikh militants in 2011 and 2012’. The Tribunal put to the applicant that he made no mention of this when giving evidence about extremists attacking his family after he left India, the applicant only mentioning the attack on the home in May 2014 and an earlier occasion on which his father was punched and beaten.  In response, the applicant said that the claim made in his father’s affidavit was correct. When asked to say more about those two particular occasions, the applicant said that once the extremists found out after 2009 that the family was following the DSS, they kept coming back and these incidents occurred regularly, including in 2011 and 2012.

19. The Tribunal again asked the applicant to state what happened in these claimed incidents in those years. The applicant did not directly respond and, instead, just broadly referred to extremists continuing to come to the home trying to find out where he was.  When asked who was beaten on these two specific occasions, the applicant again did not directly respond, simply saying that whatever was happening, the same things continued and his brothers were young.  The Tribunal again asked the applicant who was beaten on these two specific occasions. The applicant said that it was his father and his father’s brothers.  When asked who else was attacked on these two occasions, the applicant said that nobody was spared, extremists will beat anyone they come across and the neighbours were also involved.

20. The Tribunal found the applicant’s evidence in response to these questions to be most unconvincing.  While the applicant was asked about events that occurred in 2011 and 2012, if it was truly the case that the family had been ‘brutally’ attacked by extremists in those years, the Tribunal could reasonably expect the applicant to give an account of those incidents. Rather, the applicant’s responses to the Tribunal’s questions were demonstrably vague and evasive. Finally, he could only vaguely respond that the incidents concerned uncles and neighbours and his evidence in this respect reflected untruthfulness.

    Evidence about the detention of the applicant’s brothers

21. To the Tribunal, the applicant said that false cases had been taken out against his brothers in 2018. He said that in May 2018 they were both detained for four or five days in relation to that case.  He thought that there were two other occasions when they had been detained overnight.  The Tribunal put to the applicant that this evidence appeared to be inconsistent with a claim made by his representative in submissions dated 29 October 2019 that one of his brothers had been held in prison for more than one year.  Before the applicant could respond to this concern, his representative interjected and said that the submissions may have contained a typographical error.

22. The applicant himself then said that a court case continued, but, ‘not for that sort of period’.  The Tribunal asked the applicant whether one of his brothers had been held in prison for more than one year.  In response, the applicant said ‘No’; that he had two brothers and they had both been held for approximately four or five days.  At the conclusion of the hearing, the representative submitted that whatever instructions the applicant gave him, he put in his written submissions. He apologised for what he said was a typographical error as he was recovering from surgery. He said that what he meant to say in the submissions was that the applicant’s brother(s) had been held for one week and he would submit court documents to corroborate this.

23. Although the representative made that claim, his submissions clearly state that one of the applicant’s brothers was held in prison for more than one year and had only ‘recently’ been released on bail.  By letter dated 26 November 2019, the representative submitted that the applicant’s brothers were apprehended and detained by police. When they were not released, the applicant’s father approached the Human Rights Commission and, to protect themselves, the police registered a false first information report after five days of illegal detention and torture. His brothers were still kept in custody and not released, even though the court that subsequently granted them bail, stated that their custody was not required and there were no injuries to the complainant in that case.

24. In support of these claims, the representative enclosed a First Information Report dated [date] May 2018 and what appeared to be extracts from a court document related to that report and which appears to have been prepared or issued in July 2008.[9]  According to these documents, the applicant’s brothers were held in custody from [date] May 2018 and a request was sought for bail.  These documents indicated bail was granted by the court.  The Tribunal has carefully considered the contents of these documents, but, they do not indicate that the applicant’s brothers were held for one week as the representative purported to claim nor for four or five days as the applicant claimed. Overall, the contents of these documents do not resolve the inconsistency in the evidence before the Tribunal about the period of detention of the applicant’s brothers.

    Omission of claims from protection visa application form

    [9] See folios 100 – 102 of the Tribunal file.

25. In that part of his protection visa application form, where required to give reasons for claiming protection, the applicant said that he followed the DSS and for that reason many Sikh people were troubling him.  In the application form, where required to specify whether or not he experienced harm in his country, the applicant said ‘No’; he left India before he was harmed.  He said that he was advised to leave the DSS or face the consequences.  Where required to specify who he thought could harm him in India, the applicant mentioned only ‘Sikh people’ who asked him to leave the DSS.  Where asked to state whether or not Indian authorities would protect him, the applicant said ‘No’ because many Sikhs worked in the government and had the same ‘ideology’.

26. The Tribunal put to the applicant that, in his protection visa application form he made no claim to have suffered harm in India, including from the police, and, in addition, made no claim that his family suffered harm.  When asked to explain why he omitted the claims he now makes to the Tribunal about him and his family suffering harm in India, from extremists and the police, the applicant said that the application form was completed by a lawyer who made mistakes.[10] He said that he told the lawyer ‘everything’, whatever happened.

    [10] The applicant gave broadly the same explanation to the delegate and the first Tribunal in relation to this concern.

27. The Tribunal rejects the applicant’s submissions because, if the application form could contain the claim that the applicant followed the DSS and feared harm from extremists on that ground, then, if the applicant was relating a truthful account, the application form would also mention, if only briefly, that he suffered harm at the hands of extremists as well as the police.  The Tribunal does not accept that these important claims would be omitted from the application form through some error on the part of the person who helped the applicant to complete it.  The omission of these important and significant claims from his application form reflected poorly on his credibility.

    Inconsistency with written statement

1. With his protection visa application, the applicant lodged a written statement.  In his statement, with respect to following the DSS, the applicant made the following claims (verbatim):

   ‘I belong to Sikh religion but I joined [DSS], Sirsa as a great follower of [name of person] who heads the said institution ……

   I joined [the DSS] in 2007 and was a staunch devotee of [the DSS founder].  So much so I virtually left my family and started staying with Guruji at the dera in Sirsa.’

2. The Tribunal brought these claims to the applicant’s attention and, in addition, very similar claims made by his father in his affidavit. In this respect, in the affidavit, the applicant’s father said that he and his [sons] were all ‘disciples’ of the DSS, that the applicant ‘even started staying in the dera’ and was one of the very few who was known for his commitment and dedication’ to the DSS.

3. The Tribunal put to the applicant that these claims appeared to be inconsistent with his evidence to the Tribunal that, over a period of approximately two years, he only went to the DSS temple 15 or 16 times and only sometimes stayed overnight.  In response, the applicant said that, at the time, he said nothing to his family and they did not know what was going on. He would go to the temple secretly with friends and sometimes stay there. He would tell his family that he was visiting different relatives.  His response does not explain or resolve the inconsistency in his accounts. According to the documents mentioned, the applicant was staying at the DSS as a very committed follower.  To the Tribunal, in contrast, the applicant only sometimes stayed overnight and, beyond that, as stated above, over a period of two years attended the temple infrequently.

4. The Tribunal put to the applicant that, in his written statement, he said that Sikh radical groups were concerned about the number of Sikhs following the DSS and that caused them to start ‘a kind of war’ against followers of the DSS.  In his statement, the applicant then said as follows (verbatim):

   ‘I had to bear the brunt twice as I was picked up by [Sikh extremists] who beat me up mercilessly and left me for dead.’

5. The Tribunal put to the applicant that this was inconsistent with his evidence to the Tribunal that, in fact, he was attacked and beaten by the extremists on only one occasion.  In response, the applicant said that the extremists were doing all of these activities through the police as well because, a lot of times, they had him beaten up by the police.  They got police involved in that. His response does not resolve the inconsistency in his evidence about the number of occasions on which he was attacked and beaten by extremists.

6. In his written statement, the applicant said that ‘twice [he] was picked up by Punjab Police and tortured and detained illegally.’  The Tribunal asked the applicant why he did not also claim in his written statement that, in addition to the two occasions where he was held and maltreated, there were a number of other occasions when the police came and took him to the police station where they held him for a few hours, as he had claimed to the Tribunal. 

7. In response, the applicant said that he told his then lawyer, who prepared those documents, ‘everything’, the lawyer told him to sign the documents and he did not know what was put in them. He said that since then that person’s ‘licence’ as a migration agent had been cancelled. While the applicant makes these claims, the statement nevertheless contains an account of the applicant following the DSS and suffering harm at the hands of extremists and the police. If it was truly the case that the police apprehended and held the applicant in custody on a number of occasions and not just twice, then this would have been mentioned in the written statement.

   Delay in applying for protection

8. The Tribunal put to the applicant that he arrived in Australia in April 2009, having left India in fear of harm from Indian police and Sikh extremists, but, he did not apply for protection until mid-2014.  The Tribunal put to the applicant that a delay of that length could suggest that he did not genuinely fear harm in India and also cast doubt over the credibility of his claims that he and his family suffered harm from the police and extremists.  In response, the applicant said that when he came to Australia in 2009 he thought that he would undertake study and once his studies were completed he would be able to stay in Australia.

9. He then said that his plan, at that time, was that things in India might get better and once his study was done he could return there.  He said that, at that time, he did not intend to remain in Australia permanently. He said that had the situation in India improved he would have gone back there. He then said that each time he had contact with his family he learned that the situation was always worse. His family would tell him not to come back and he understood that the situation for him was bad in India.[11] 

   [11] The applicant gave broadly similar explanations to the delegate and the first Tribunal when this concern was explored with him.

10. The applicant then said that, over time, his relationship with his spouse got worse and everything was in a bad state. The Tribunal asked the applicant why he was included in an application for protection made by his spouse in late 2013.  In response, the applicant said that, at that time, because of problems in India they both made an application. He said that, however, her ‘system’ in India was very different from his family ‘system’.  The applicant then said that he came to Australia as a spouse and his wife was the student.  He got linked to her visa by that means. She had her own problems with that protection visa application.

11. The applicant then said that his case was different from his spouse’s case and his problems in India were different. For that reason, he made his own application for a protection visa and he withdrew from the application made by his wife in 2013.  The applicant then said that with respect to that application made in 2013 no mention was made of the events that he claims occurred in India and on which he bases this current protection visa application.  When asked why he did not advance his protection claims in that application, the applicant said that those claims were not advanced because that application was his spouse’s own case and was made based on her own problems.

12. The applicant has claimed to the Tribunal that he left India for his safety in 2009, but, he did not apply for protection until approximately five years later.  The Tribunal acknowledges his evidence that he was included in a protection visa application made by his spouse in 2013, but, he also said that he did not advance any protection claims of his own at that time. The Tribunal does not accept that the applicant would seek to stay in Australia for his safety on the basis of study, nor does the Tribunal accept that the applicant would honestly think that he could safely return to India when, at the same time, he claims his family were always telling him that danger persisted.  Accordingly, the Tribunal finds that there has been substantial and inordinate delay on the part of the applicant in applying for protection for which he has not provided an adequate explanation. This delay demonstrates that the applicant does not genuinely fear harm in India and reflects poorly on his credibility.

    FINDINGS

13. Considered cumulatively, the concerns that the Tribunal holds about the applicant’s credibility cause the Tribunal to find that he is not a witness of truth and the account of events on which his protection claims are based is false. Accordingly, the Tribunal disbelieves the applicant’s evidence that he attended and followed the DSS in India.  The Tribunal disbelieves the applicant’s evidence that Sikh extremists took an adverse interest in him and threatened and attacked him. The Tribunal disbelieves the applicant’s claims that Indian police also harassed, detained and beat him. The Tribunal disbelieves the applicant’s evidence that his parents and brothers were followers of the DSS and his claims that they suffered harm at the hands of Sikh extremists and Indian police.

14. In reaching its findings on credibility, the Tribunal has carefully considered the documents submitted by the applicant to corroborate his claims, those documents being affidavits, a letter from a DSS centre, a First Information Report and court document.  The contents of some of these documents are actually inconsistent with the applicant’s evidence, in the respects discussed above.  The Tribunal has stated above why these documents do not resolve the concerns held by the Tribunal which are manifold and significant. Accordingly, the Tribunal finds that the contents of these documents are false and the Tribunal does not give evidentiary weight to them.

15. By letter dated 29 October 2019, the representative made submissions on behalf of the applicant.  In the submissions, the representative expressed objections to comments made by the delegate relating to the applicant’s credibility.  The comments in question are not relevant to the concerns that the Tribunal holds about the applicant’s credibility and so these submissions do not assist the applicant.  With these submissions, the representative provided country information about the DSS in India as well as more general country information about human rights practices in India.[12]  This country information was provided in the context of the applicant’s claims to have been a follower of the DSS and suffered harm from extremists and the police as a consequence.  For the reasons given above, the Tribunal disbelieves the applicant’s claims on those matters and, therefore, this country information does not assist him.

    [12] Similar country information appears on the Department file at folios 77 – 90.

16. Because the applicant is not a witness of truth, the Tribunal finds that there is no credible evidence that he or his family suffered harm in India. There is no credible evidence before the Tribunal that anyone in India seeks to harm the applicant and his family. There is no credible evidence as to why the applicant left India and why he does not want to return there. The Tribunal accepts that the applicant is a Sikh, but, he has not claimed protection on that ground. The applicant has claimed protection on the ground of following the DSS and suffering harm as a result, claims that the Tribunal disbelieves.  The Tribunal understands that the applicant has separated from his spouse, but, he has not claimed to fear harm on that ground or on any ground on which she applied for protection.

17. For all of these reasons, there is not a real chance that the applicant will suffer serious harm in India. Therefore, the applicant does not hold a well-founded fear of persecution based on any convention ground.  For these same reasons, the Tribunal finds that there is not a real risk that the applicant will suffer significant harm in India. Accordingly, the Tribunal finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of his removal from Australia to the receiving country, India, there is a real risk that he will suffer significant harm. The Tribunal concludes that the decision under review should be affirmed.

    CONCLUSIONS

18. 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 the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

19. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

20. 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

21. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Paul Millar
    Member