1815178 (Refugee)

[2018] AATA 4507

1815178 (Refugee) [2018] AATA 4507 (20 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1815178

COUNTRY OF REFERENCE:                  India

MEMBER:Brendan Darcy

DATE:20 September 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 20 September 2018 at 4:55pm

CATCHWORDS

REFUGEE – Protection visa – India – Race – Punjabi Sikh – Religion – Sikhism – low profile member of Dera Sacha Sauda – delay in lodging protection visa application – extensive visa history – partner visa application was bogus – history of providing false names to the authorities – credibility concerns – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 424AA, 499

Migration Regulations 1994, r 1.21, Schedule 2

CASES

Guo v MIEA (1996) 40 ALD 445
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo & Anor (1997) 191 CLR 559
Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61
Nagalingam v MILGEA (1992) 38 FCR 191

Prasad v MIEA (1985) 6 FCR 155

Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347

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 on 24 May 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of the Republic of India, applied for the visa on 24 April 2018. On 24 May 2018, the delegate refused to grant the visa on the basis that the applicant did not have a real chance of serious harm or a real risk of significant harm based on his religion not been

   CRITERIA FOR A PROTECTION VISA

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

4. 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.

5. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

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. 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.  

7. 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

8. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Background

10. The applicant was born on [date of birth] in [Village 1] in the Indian state of Haryana and claimed to be a citizen of the Republic of India.

11. The applicant has provided a copy of his Indian passport as documentary evidence of his identity, nationality and citizenship.

12. The applicant claimed that he can speak, read and write Punjabi and English; he also claimed to belong to the ethnicity of ‘Sikh’ and that his religion is Sikhism. The applicant claimed that before departing for Australia he worked in his family’s [business] and he has largely been supported by his parents.

    Applicant’s visa history

13. The applicant has an extensive visa history since first arriving in Australia on 1 February 2008:

Date	Event details
26 October 2007	The applicant applied for a class TU subclass 573 student visa as secondary applicant to the application for his spouse, [Ms A].
15 January 2008	The applicant and his spouse were granted the student visa.
1 February 2008	The applicant arrived in Australia while holding a student visa
15 May 2008	The applicant, as a dependent, and his spouse were granted further subclass 573 student visas
18 June 2010	The applicant, as a dependent, and his spouse applied for class TU subclass 572 student visas for vocational education
2 July 2010	The applicant, as a dependent, and his spouse were granted subclass 572 student visas
18 January 2011	The applicant departed Australia
1 February 2011	The applicant returned to Australia while holding a subclass 572 student visa
7 September 2011	The applicant, as a dependent, and his spouse applied for  further subclass 572 student visas
7 October 2011	The applicant, as a dependent,  and his spouse were granted a further subclass 572 Student visa
2 March 2012	The applicant departed Australia
19 April 2012	The applicant returned to  Australia while holding a  subclass 572 student visa
13 March 2013	The applicant, as a dependent, and his spouse applied for  further subclass 572 student visas

24 May 2013	Granted further TU-572 (Student) visa (as dependant)
21 May 2014	The applicant, as a dependent, and his spouse applied for  further subclass 572 student visas
21 October 2014	The applicant, as a dependent,  and his spouse were granted a further subclass 572 Student visa
15 July 2015	The applicant’s subclass 572 student visa expired.
16 July 2015	The applicant became an  unlawful Non-Citizen (UNC)
28 February 2017	The applicant was detained in Immigration Detention
23 March 2017	The applicant applied for a class WE subclass 050 (Bridging) visa
27 March 2017	The applicant was refused a subclass 050 (Bridging) visa
24 April 2017	Applied for ZB-951 (Criminal Justice Stay) visa
26 April 2017	Applied for ZB-951 (Criminal Justice Stay) visa
05 May 2017	The applicant was refused a subclass 951 (Criminal Justice Stay) visa
24 May 2017	The applicant applied for a class UK subclass 820 onshore (Combined Partner) visa
25 May 2017	The application for a (Combined Partner) visa was found to be invalid
07 July 2017	The applicant was granted a class ZB subclass 951 (Criminal Justice Stay) visa and was released from Immigration Detention
31 January 2018	The applicant’s subclass 951 visa was cancelled
01 February 2018	The applicant became an  Unlawful Non-Citizen (UNC) for a second time
17 March 2018	The applicant was detained in Immigration Detention for a second time
28 March 2018	The applicant applied for a further class WE subclass 050 (Bridging) visa, only to have it withdrawn on the same day.
24 April 2018	The applicant applied for a class XA subclass 866 Protection visa (PV)

Claims for protection

1. The applicant provided the following as part of his claims for protection:

   Provide reasons why this applicant left that country or those countries:

   I was born and raised in India and after completing my initial studies there i wanted to come to Australia and study here. I was falling into a bad company as per my parents and thats the reason my family sent to Australia for studies. India a place where people follow different religions and majority of population has different gods and I have different one and my family always followed Sikh religion and I was following Baba Ram Rahim Singh founder of Dear Sacha Saudi. (sic)

   Did this applicant experience harm in that country or those countries?

   No

   Did this applicant move, or try to move, to another part of that country or those countries to seek safety?

   No

   Give details for why this applicant did not try to move to another part of the country or those countries.

   When i was in India i never experienced any harm and i didn't have to move to another part of the country to live. Only problem was facing resistance from my family that I was strong follower of Baba Ram Rahim.

   I had no fear for my life when i was in India as Baba Ram Rahim had very strong base however, due to recent chain of incidents and capture of Baba Ram Rahim has caused widespread spark among communities and clashes in recent months and causing people to relocate but I didnt have to so this. (sic)

   Explain what the applicant thinks will happen to them if they return to that country or those countries:

   Things have changed dramatically in India since i left there. I have been active member member of Dear Sacha Sauda and I could be target of Indian authorities and upon arrival to India.

   I could be the next one on Police list to capture and blame that I was part of the entire consiparacy. However, my role was Baba G' preaching and do the right thing however, Baba Ram Rahim has been accused of rape and killing and this could come to me as well even though I have nothing to do what what happened at the Dera. (sic)

   Does this applicant think they will be harmed or mistreated if they return to that country or countries?

   Yes

   Give details including:

   ·           the type of harm or mistreatment this applicant is likely to experience

   ·           the person/people who would be responsible for the harm or mistreatment

   ·           why they would harm or mistreat this applicant.

   I could be the next one on Police list to capture and blame that I was part of the entire consiparacy. However, my role was Baba G' preaching and do the right thing however, Baba Ram Rahim has been accused of rape and killing and this could come to me as well even though I have nothing to do what what happened at the Dera. (sic)

   Does this applicant think the authorities of that country or those countries can and will protect this applicant if they go back?

   No

   Give details about why this applicant thinks the authorities could not, or would not, protect them.    

   Authorities are corrupt in India and abuse of human rights is common across India and i wont be spared if i return back to India. I want to protect myself and stay away from trouble and don't want to get killed in this series of attacks on innocent people. There have been recent videos emerged public has been shot while doing peaceful protest again Indian government. (sic)

   Does this applicant think they would be able to relocate within that country or those countries to an area where they would not be harmed?

   No

   Give details about why this applicant is unable to relocate:

   India is a country where law order is not at its best. I can move to another part of India how ever people i am up against they are all over the India and running from one state to another state is not a solution.

   Indian government is everywhere and police is looking for any active or strong follower of Baba g, to punish them and make sure they threaten people to do statements against Baba g, so they could hang him. (sic)

2. The applicant was interviewed by a Departmental official on 9 May 2018.

3. A delegate on behalf of the Minister refused to grant the applicant a protection visa on 24 May 2018.

   Evidence before the Tribunal

4. On 24 May 2018, the applicant applied to have the delegate’s refusal decision reviewed by the Tribunal. The decision record is attached.

5. At the time of this matter being allocated to a Tribunal Member, the applicant was in immigration detention.

6. The applicant attended a scheduled hearing on 17 July 2018 to give evidence and present arguments as to the reasons he is owed Australia’s protection obligations. Also in attendance was an interpreter in the Punjabi and English languages.

7. Although there were a number of witnesses, due to an urgent health matter involving one of the witnesses, the hearing was adjourned.

8. A resumed hearing was held on 27 July 2018. The applicant was assisted an interpreter in the Punjabi and English languages. Two witnesses, one claiming to be the applicant’s wife, and the other claiming to be a family friend of the applicant [also] provided oral evidence. Copies of their passports are on the Tribunal’s file.[1]

   [1] AAT Folio 31-33.

9. On 23 July 2018, the applicant submitted a number of typed statements. The first statement is claimed to be from the applicant’s friends, [and] is dated 5 June 2018. The letter is supportive of the applicant’s character and protection visa application and the authors claim to be able to accommodate the applicant.

10. Another undated statement claims to be from [Mr B], claiming to have known the applicant in his capacity of running the Dera Sacha Sauda (DSS) satsang (Dera gatherings) in [City 1] over a five year period. It was claimed the applicant was misguided by one of the applicant’s migration agents and that he cannot return to India (although no reasons are provided).

11. A third statement dated 21 July 2018 claims to be from the applicant’s wife. It states she shares the same religion as the applicant and that she has applied for a protection visa as well but has not received any decision from the Department. It states that it is not safe to return to India.

12. At the end of the hearing, the Tribunal provided the applicant an opportunity to provide additional documents and submissions to support a number of claims. Of particular interest to the Tribunal was evidence of the five or so DSS devotees known to the applicant who he claimed had been arrested or detained, and he feared had been framed and brutalised by the authorities.

13. On 5 August 2018, the applicant submitted a number of additional documents.[2] These included a number of photographs of the applicant’s Sikh wedding ceremony from 2016 and a copy of the marriage certificate.  There were a number of reports about riots in Panchkula from August 2017. The applicant acknowledged he was unable to provide information about the five devotees known to him. He was able to provide copies of a 2017 US Department of State Human Rights Report and an academic article about the pervasiveness of corruption among India’s police to demonstrate widespread corruption among the Indian authorities. 

    [2] AAT Folio 48-112.

14. No further documents or submissions were submitted, right up to the time of making this decision.

    Non-disclosure notice

15. There is no non-disclosure notice attached to the Departmental file relating to this applicant.

    Country information: India

    Sikhism

16. Below is country information regarding Sikhism from the 7 December 2016 DFAT Thematic Report regarding the Indian state of Punjab:

    Religion

    3.33 Article 15 of India’s Constitution prohibits discrimination against any citizen on the grounds of religion. Article 25 guarantees the right to freely profess, practise and propagate religion (subject to ‘public order, morality and health’) and Article 26 guarantees every religious denomination or any sect the freedom to manage its own religious affairs. According to the US State Department’s 2014 report on religious freedom—the most recent report available—there are no requirements for registration of religious groups in India, and the law provides minority community status for six religious groups: Muslims; Sikhs; Christians; Parsis (also known as Zoroastrians); Jains; and Buddhists. Minority community status confers certain rights such as the right to establish and administer educational institutions. Under Explanation II of Article 25(b) of the Constitution, Sikhism, Jainism and Buddhism are not recognised as separate religions, but instead are considered part of Hinduism. While other religious groups (including Hindus, Christians, Parsis and Muslims) have legally-recognised personal laws governing personal matters such as marriage, divorce, adoption and inheritance, Sikh matters largely fall under Hindu laws, although there are separate rules for Sikh marriages. The lack of constitutional recognition of Sikhism in particular is a source of dissatisfaction within Sikh-majority Punjab.

    […][…]

    Sikhs

    3.7      Sikhism is a monotheistic religion founded in the Punjab region in the 15th century. Sikhs consider themselves disciples of the Ten Gurus, beginning with Guru Nanak (1469-1539) and ending with Gobind Singh (1666-1708). Practising Sikhs are physically identifiable due to a number of distinguishing features, including the requirement to wear the five kakaars (also known as the 5 Ks): Kesh (uncut hair); Kangha (a wooden comb); Kara (a metal bracelet); Kachera (loose-fitting cotton undergarments); and Kirpan (a dagger or sword with a curved blade). The 5 Ks are considered articles of faith by both men and women. In practice, many Sikh men and women trim or shave their hair or dispense with one or all 5 Ks in daily life. Men often wear a dastaar or turban to cover their hair; Sikh women wearing turbans is less common, but some do cover their hair.

    3.8      Some in the Sikh community continue to resent the perceived lack of accountability for the confrontation at the Golden Temple in 1984 and the subsequent period of separatist militancy, as well as the lack of prosecutions for those responsible for killing Sikhs in the wake of Indira Gandhi’s assassination (see ‘Recent History’ above). This underlying tension manifests itself in strong public advocacy for greater accountability for these events, both in Punjab and in the expatriate Sikh community in western countries, but rarely if ever translates to organised violence. A small number of Sikhs continue to advocate for a sovereign Sikh state of Khalistan. Police claim to have thwarted a planned attack on the New Delhi Commonwealth Games in 2010 by a pro-Khalistan group. However, such incidents are very rare, and multiple credible sources told DFAT that there is no appetite amongst the Sikh community in Punjab for a separatist movement or a return to militancy, which had significant impacts on the Punjabi economy.

    3.9      Many Sikhs have held high office in India, and particularly in Punjab. The Sikh-based Shiromani Akali Dal political party is currently the senior coalition partner in government in Punjab. The Chief Minister, Parkash Singh Badal, is Sikh (as is his son, the Deputy Chief Minister) and is currently serving his fifth term as Punjab’s Chief Minister. Former Prime Minister Manmohan Singh is a Sikh, and several Sikhs have held high positions in the central government. Sikhs have long enjoyed a disproportionately high representation in the Indian Armed Forces, although only two Sikhs have held the powerful position of Chief of Army Staff.

    3.10      DFAT assesses that Sikhs in Punjab have no higher risk of religious-based official or societal discrimination or violence than that faced by people from other religious groups.

    DSS

1. Below is an extract of a September 2013 Issues Paper prepared by the then Department of Immigration and Citizenship – Indian: Sikhism, Cast & Deras:

   Dera Sacha Sauda (Dera Sauda Sirsa)

   One of the most popular and controversial deras in India is Dera Sacha Sauda (DSS), sometimes referred to as Dera Sauda Sirsa, due to the location of its headquarters near the town of Sirsa, Haryana.[3]

   [3] Sharma, N S 2012, ‘Controversy over fake affidavit submitted by police about case against Dera Sach Sauda head’, Punjab Newsline, 6 February < Accessed 30 August 2012.  

   DSS is a spiritual and social movement founded in 1948 by Shehenshahji Mastana, a Sikh originally from Balochistan. According to Himal South Asian, Mastana believed that Sikhism had strayed by allowing caste to re-establish itself within the religion. Mastana established the ashram “with an eye to social reform and spiritual purification – among the Sikhs in particular, but also others in general”.[4]

   [4] Alig, A & Anwar, A 2007, ‘Embers of a Sikh fire’, Himal South Asian, October < Accessed 9 October 2007.

   Size, Caste Composition & Wealth

   The DSS website states that it has 44 ashrams across India and claims to have over forty million followers worldwide.[5] The Economist reported in 2007 that the DSS had “some 400,000 followers, both Sikhs and members of the Hindu majority, mainly among the poor, illiterate, and lower castes”.[6] In 2007, BBC News reported that the DSS counted Sikhs, Hindus, Muslims and Christians among its followers, noting that “[m]ost of its followers are Dalits”.[7]

   [5] Dera Sacha Sauda n.d., Dera Sacha Sauda Ashrams Across India < Accessed 28 July 2011 <Attachment>; Dera Sacha Sauda 2010, About Us < Accessed 5 January 2012.

   [6] ‘Dangerous tensions in Punjab’ 2007, The Economist, 5 July < cfm?story_id=9444533> Accessed 1 August 2007.

   [7] ‘PM urges calm over Sikh protests’ 2007, BBC News, 18 May < Accessed 25 November 2009.

   In July 2013, Punjab News Line reported that the annual income of DSS doubled in two years, and is now estimated to be approximately one billion rupees per annum. As a spiritual organisation and charity, the DSS is exempt from paying tax on this income.[8]

   [8] ‘Dera Sirsa’s annual turnover doubles in two yrs, reaches Rs 60 cr’ 2013, Punjab News Line, 22 July, FACTIVA.

   Beliefs & Services

   The DSS website also outlines many of the core values and beliefs of the movement, such as “humanitarianism”, “selfless services”, rejection of dowries, “social evolution”, “eradicating social evils”, the provision of education to all, and the promotion of efficient organic farming.[9] The DSS claims to routinely perform “around 70 social welfare activities”. Some of the programs listed on the DSS website include: the operation of a home for leprosy patients; the provision of wheelchairs to the disabled; the provision of financial aid to poor patients; the operation of a blood bank; the provision of financial assistance to poor students; and the provision of free legal aid. Other ‘welfare activities’ include encouraging people to shun homosexuality; the ‘emancipation’ of prostitutes; the “promotion of vegetarianism”; and “helping young divorcee women getting married again”.[10] In July 2013, DSS controversially declared that thousands of its members were ready to marry widows who lost their husbands in floods in Uttarakhand the previous month.[11]

   [9] Dera Sacha Sauda 2010, About Us < Accessed 5 January 2012.

   [10] Dera Sacha Sauda n.d., 70 Humanitarian Activities < Accessed 5 January 2012.

   [11] ‘Be a father or human figure to Uttarakhand widows, not a husband: Priests to Dera Sacha Sauda’ 2013, Dailybhaskar.com, 13 July, FACTIVA.

   Political Influence

   As a consequence of its popularity among Punjab’s dalits and other scheduled castes, DSS Guru Gurmeet Ram Rahim Singh is routinely courted by leaders of the major political parties in Punjab, namely the Shiromani Akali Dal – Badal (SAD Badal), Indian National Congress (INC), and the Bharatiya Janata Party (BJP).[12]

   [12] Garg, B 2012, ‘Political leaders court Dera on poll eve’, The Tribune, 29 January < Accessed 15 August 2013.

   Dalits are estimated to constitute approximately 70 per cent of DSS followers. Unlike in Uttar Pradesh, the Dalit-dominated Bahujan Samaj Party (BSP) has not enjoyed political significance, let alone power, in Punjab.[13] The Hindu reported in 2009 that the INC and SAD – Badal competed for Dera support ahead of state assembly elections on the grounds that dera followers “have a reputation of voting as a block”.[14] In 2009, The Hindu reported:

   [13] Baixas, L. 2007, ‘The Dera Sacha Sauda Controversy and Beyond’, Economic and Political Weekly, October 6, Vol. 42, No. 40, p. 4064.

   [14] Mahaprashasta, A 2009, ‘Akalis, Congress woo Dera Sacha Sauda’, The Hindu, 19 April < Accessed 10 February 2010 <Attachment>;‘Dalit votes to decide ruling party of Punjab’ 2012, India Today, 16 January < Accessed 16 August 2012.  

   Dera (sect) politics, especially after the 2007 fiasco, has become very important for political parties in the region that accounts for five constituencies out of the 13 in the State. It all started when the Dera followers were told to vote for the Congress in the last Assembly election in 2007 helping the party defeat the Shiromani Akali Dal (Badal) in the Malwa region that had traditionally supported the Akalis.

   …

   In the last few months, to prevent electoral reverses, the SAD (Badal) government is said to be softening its stand on the Dera by letting it re-open the branches in Punjab that were shut after the violence. But the Dera, according to some reports, is sceptical about the SAD. Congress leaders, wary of the SAD’s conciliatory moves, have been making frequent visits to Baba’s durbar.[15]

   [15] Mahaprashasta, A 2009, ‘Akalis, Congress woo Dera Sacha Sauda’, The Hindu, 19 April < Accessed 10 February 2010.  

   Some seat-rich regions of Punjab are dominated by Dalits, such as Malwa, home to 69 state assembly seats. According to The Times of India, DSS delivered these seats to Congress in the 2012 elections.[16] According to The Tribune, all major parties courted the DSS on the eve of the 2012 elections; “[a]s the Dera’s support is vital for every political party, so most candidates in the fray in these constituencies were uninhibited in visiting the dera and seeking its support”.[17]

   [16] Parashar, S 2012, ‘Punjab polls: Dalit self-pride holds key in fertile Doaba’, The Times of India, 26 January < Accessed 16 August 2012.

   [17] Garg, B 2012, ‘Political leaders court Dera on poll eve’, The Tribune, 29 January < Accessed 15 August 2013.

   According to Gobind Thukral in The Hindustan Times,[18] Gurmeet Ram Raheem Singh once received the assistance of SAD-Badal leader and Punjab Chief Minister Parkash Singh Badal. However, the guru and the chief minister fell out after Gurmeet Ram Raheem Singh publicly supported the INC in 2007, humiliating Badal and causing many Akalis to “seek revenge” by attempting to have “the Dera chief replaced by a more pliable person”. The result was significant violence, discussed below. However, writes Thukral, the BJP rebuked its SAD Badal coalition partner, “threatened to revise their sharing of power with the Akalis”, and refused to participate in bandhs (strikes) protesting the DSS.[19] However, by 2009, the Akalis were reportedly seeking to reconcile with the DSS and Gurmeet Ram Raheem Singh, prompting suspicions from INC leaders.[20]

   [18]  The Hindustan Times is part of a large Indian media organisation HT Media, and is its daily English-language flagship newspaper.  It was established in 1924.  The Hindustan is the Hindi version and according to information on the HT website this is the second-largest circulating newspaper in India.

   [19] Thukral, G. 2007, ‘Keep the faith’, The Hindustan Times, 18 June < Accessed 6 January 2012 <Attachment>; Baixas, L. 2007, ‘The Dera Sacha Sauda Controversy and Beyond’, Economic and Political Weekly, October 6, Vol. 42, No. 40, p. 4063.

   [20] Mahaprashasta, A. 2009, ‘Akalis, Congress woo Dera Sacha Sauda’, The Hindu, 19 April – Accessed 10 February 2010.

   Treatment of DSS followers and activists

   No sources were located indicating that ordinary followers of DSS are targeted for harm by the dera’s opponents. No sources were located indicating that people have been harmed while visiting dera property or for utilising services provided by DSS. Sources do indicate that DSS activist meetings and rallies were the subject of protests and some violence in the past, particularly in 2007. While anti-DSS rhetoric continues to be enunciated by some religious and political groups, notably the Akali Takht and Sant Samaj, acts of violence or harassment against DSS activists are no longer common. It should also be emphasised that while DSS activists were routine recipients of violent attacks and protests in the past, they have also been participants in violence. Examples are provided in Section 3.1.5.

   The most serious violence affecting DSS activists/groups occurred in 2007. In a now infamous act, DSS Guru Gurmeet Ram Rahim Singh appeared to imitate the revered tenth Sikh Guru, Guru Gobind Singh. Writing in The Hindustan, Gobind Thukral states that the guru’s “farcical manner” should have “provoked some wry humour”. However, the Sikh ruling elite saw a political opportunity to diminish the growing political power of the DSS guru and the dera:

   …the political class saw in it an opportunity for consolidation of their respective political bases. Consequently, there were armed clashes that left scores of Dera followers and Sikhs injured and one young man dead. For the first three days, the police were mere spectators as sword and lathi-swinging mobs clashed in and around Bhatinda, the heart of Punjab’s prosperous Malwa. At the behest of the ruling Akali Dal and the Shiromani Gurdwara Prabandhak Committee (SGPC), the Sikh clerics occupying the five Takhts arbitrated, but their harshly-worded edicts only fuelled more hatred.[21]

   [21] Thukral, G 2007, ‘Keep the faith’, The Hindustan Times, 18 June < Accessed 6 January 2012.

   Similarly, The Economist argued that the Akali Dali (SAD-Badal) “encouraged protests against the Dera” and authorised “the police to arrest Mr Singh for hurting Sikh sentiments”.[22] BBC News states Sikh leaders were seeking to punish Gurmeet Ram Rahim Singh for supporting the Congress Party ahead of Punjab state elections; “Sikh leaders, angry at the direct intervention by the DSS in the elections, seized the opportunity to whip up popular sentiments of their community against the DSS”.[23] The violence reportedly lasted for six days and led to the death of at least one person and over 100 injured.[24]

   [22] ‘Dangerous tensions in Punjab’ 2007, The Economist, 5 July < cfm?story_id=9444533> Accessed 1 August 2007.

   [23] Singh, J 2007 ‘What is behind Sikh protests?’, BBC News, 18 May < Accessed 26 November 2009 <Attachment>.

   [24] ‘Punjab limping back to normalcy, isolated protests’ 2007, The Hindu, 19 May < Accessed 10 March 2008.

   Anti-DSS violence and demonstrations once again erupted in June 2008 after a Sikh protestor was shot and killed in Mumbai by one of Gurmeet Singh’s bodyguards. Riots were reported in both Mumbai and Punjab.[25] In October 2011, fourteen DSS members charged in relation to the shooting death in Mumbai in 2008 were acquitted.[26]

   [25] US Department of State 2008, International Religious Freedom Report for 2008 – India, 19 September.

   [26] ‘Dera members acquitted of murder charges’ 2011, ZeeNews.com, 18 October < July 2008, radical Sikh groups organised bandhs (strikes), which turned violent after the alleged killing of a Sikh youth by sword carrying DSS members in Dabwali (near Sirsa); 17 people were injured in the ensuing violence. Daily News & Analysis[27] reported that the bandh was supported by the Shiromani Gurdwara Prabandhak, a body in charge of Sikh holy sites.[28]

   [27] Launched in July 2005, Daily News & Analysis is a Mumbai-based English broadsheet daily owned by Diligent Media Corporation. See About Us < Bharadwaj, A 2008, ‘Sikh–Dera showdown shuts Punjab down’, Daily News & Analysis, 24 July < Sikh group commonly implicated in violent clashes with DSS is Ek Noor Khalsa Fauj.[29] In 2009, The Tribune reported that “20 armed assailants of the Ek Noor Khalsa Fauj” attacked DSS members in Shimlapuri, Ludhiana. According to the report, “[a]rea residents said the followers of the Ek Noor Khalsa Fauj were armed with swords and other sharp-edged weapons”.[30] A similar clash between the two groups was reported in March 2011 in the Moga district of Punjab after Ek Noor Khalsa Fauj attempted to disrupt a DSS meeting. DSS members reportedly responded by throwing stones at the Ek Noor Khalsa Fauj gurdwara.[31]

   [29] Ek Noor Khalsa Fauj is a small, ultra-orthodox Sikh group that commonly employs violence.

   [30] ‘Bloody brawl at Shimlapuri: 12 hurt as Khalsa Fauj, Dera followers clash’ 2009, The Tribune, 24 May < Accessed 30 June 2009.

   [31] ‘Tension in village as Sikhs, dera men clash’ 2011, The Times of India, 7 March < Accessed 10 March 2011 <Attachment>; Punjab town tense after Sikh group-Dera followers clash’ 2011, ZeeNews.com, 8 March < Accessed 9 January 2012.

   Other radical Sikh organisations associated with anti-DSS actions include the Khalistan Action Committee, Sant Samaj, the All-India Sikh Students Federation (Sant Bhindranwale), and the Sikh Youth Federation. In April 2009, these organisations travelled to the residence of Punjab Chief Minister Parkash Singh Badal and demanded that he close all DSS ashrams in Punjab.[32] Sant Samaj, led by Baljeet Singh Daduwal, is described by The Hindu as ‘pro-hardline’ and like Ek Noor Khalsa Fauj, its members are known to take swords to anti-DSS protests.[33]

   [32] Sharma, S P 2009, ‘Radicals to gherao CM’s house’, The Tribune, 25 March < ‘Curfew re-imposed in troubled Punjab town; 51 arrested’ 2011, The Hindu, 4 January < Accessed 9 January 2012.

   In July 2009, a member of the DSS Mansa district committee, Lili Kumar, was shot dead in the district after having attended court in relation to a 2007 attempted murder case. In the past, Kumar’s house was allegedly set on fire.[34]

   [34] Deep, R 2009, ‘Dera Sacha Sauda follower shot dead’, The Tribune, 29 July < <Attachment>.

   The post-2007 rapprochement between SAD-B and DSS did not diminish the antipathy of the Akal Takht towards DSS.[35] As noted previously, Ronki Ram has argued that the “near-exodus of dalits from Sikhism” towards the deras continues to enrage mainstream Sikh clerics, “who see it as a serious challenge to the Sikh-Khalsa identity”.[36] In November 2011, the Akal Takht chief Giani Gurbachan Singh condemned SAD-B politician, former finance minister, and nephew of the Chief Minister, Manpreet Singh Badal after he met with Gurmeet Ram Raheem Singh at the DSS headquarters near Sirsa. Gurbachan Singh reportedly declared that Badal “was no longer a true Sikh”, and warned that he could face a boycott by the Sikh community.[37] An SGPC member, Navtej Singh Kauni, was summoned by the Akal Takht after he attended a DSS congregation in Muktsar district in May 2013.[38]

   [35] Thukral, G 2007, ‘Keep the faith’, The Hindustan Times, 18 June < Ram, R 2007, ‘Social Exclusion, Resistance and Deras: Exploring the Myth of Casteless Sikh Society in Punjab’, Economic and Political Weekly, Vol. 42, No.40, JSTOR, p.4066.

   [37] ‘Akal Takht slams Manpreet Badal for visiting Dera’ 2011, ZeetNews.com, 23 November < ‘Sarna faces Akal Takht today’ 2013, Hindustan Times, 26 July, FACTIVA <Attachment>.

   Clashes between DSS activists and opponents took place in November 2012 in Sirsa, Haryana, near the dera’s national headquarters. As a consequence, the town was subject to a curfew and police laid charges against a number of people, including DSS members. The Tribune reported that authorities closed all schools, colleges and other educational institutions in the district till 28 November. DSS blamed Guru Granth Sahib Satkar Sabha for the clash.[39]

   Perpetrators of Violence

   DSS activists in a number of locations in Punjab and Haryana have been implicated in perpetrating violence.

   In November 2012, “nearly 2,000 Dera Sacha Sauda followers” were booked for violence in Sirsa, Haryana “which left at least 12 people injured” and saw six vehicles set on fire. The violence was reportedly sparked “following some remarks made recently against the sect’s head, Gurmeet Ram Rahim Singh”.[40]

   In 2010, Hindustan Times reported that DSS followers “went on a rampage…across Haryana and Punjab, torching buses, vandalising public property and unleashing panic among the public. In Haryana, at least 12 state roadways buses were torched allegedly by the Dera followers”. The violence and vandalism were reportedly triggered by the arrest of DSS chief Gurmeet Ram Rahim Singh “for his alleged involvement in the murder of a former Dera manager, Fakir Chand”.[41] In September 2012, 34 members of DSS were sentenced to prison terms of up to three years for participating in the violence.[42]

   As noted in the previous sub-section, sword carrying DSS members were implicated in the July 2008 killing of a Sikh youth in Dabwali, Haryana.[43]

   In 2007, The Tribune reported that DSS members stoned a Gurdwara in Chanpura, Punjab after locals objected to the dera’s placement of loudspeakers at their village premises.[44]

   DSS Guru Gurmeet Ram Rahim Singh has been charged in connection with two murders and a rape.[45] Witnesses continued to be called to the trial in August 2013.[46]

   [39] ‘Flag march in Sirsa as curfew continues’ 2012, The Tribune, 25 November < ‘Dera Sacha Sauda row: Paramilitary deployed, Sirsa sealed after clashes’ 2012, India Today, 25 November < ‘Armed mobs take to streets over Dera case’ 2010, Hindustan Times, 27 February < ‘34 Dera members get 3 years’ jail’ 2012, The Times of India, 23 September < Bharadwaj, A 2008, ‘Sikh–Dera showdown shuts Punjab down’, Daily News & Analysis, 24 July < ‘Dera followers stone gurdwara, 6 held’ 2007, The Tribune, 14 June.

   [45] ‘Day-to-day hearing in rape case against Dera chief from today’ 2011, Daily Baskar, 29 September < Accessed 5 January 2012 <Attachment>.

   [46] ‘CBI allowed to call scribes in cases against dera chief’ 2013, Hindustan Times, 3 August, FACTIVA <Attachment>.

1. The DSS movement and recent developments are described as follows:

   The Dera Sacha Sauda (DSS) is a social welfare and spiritual organisation that has a history of conflict with the Sikh community. Headquartered in Haryana, the DSS cites its key principles as: secularism; equality; anti-materialism; truth and faith; meditation; strict individual discipline; strict social discipline; and hard work.[47] In 2007, DSS leader, Gurmeet Ram Rahim Singh, angered the Sikh clergy by dressing up as Guru Gobind Singh, the tenth Sikh Guru.[48] In early 2015, the Akal Takht, which is the final arbiter on all religious matters, granted a pardon to the DSS chief.[49] This upset a large number of Sikhs and divided the Sikh clergy, a section of which continued to oppose the decision of the Akal Takht.[50] In November 2013, there was a clash in Moga in Punjab between DSS followers and members of Sikh organisations when Sikhs tried to stop the DSS from holding a religious congregation.[51] In February 2015, reports emerged that 400 members of the group had self-castrated since 2000 after being told by Gurmeet Ram Rahim Singh that doing so would enable them to meet God directly.[52] In August 2017, Gurmeet Ram Rahim Singh was sentenced to 20 years imprisonment after he was convicted of rape. At least 38 people were killed and more than 200 injured after hundreds of his followers went on a rampage following his conviction.[53]

   CONSIDERATION OF CLAIMS AND EVIDENCE

   [47] DFAT Country Information Report – India, Department of Foreign Affairs and Trade (DFAT), 15 July 2015, CISEC96CF12827, p.16.

   [48] Punjab on the boil as discontent brews, Business Standard, 31 October 2015, CXBD6A0DE17332.

   [49] Punjab on the boil as discontent brews, Business Standard, 31 October 2015, CXBD6A0DE17332.

   [50] Punjab on the boil as discontent brews, Business Standard, 31 October 2015, CXBD6A0DE17332.

   [51] ‘Dera followers, villagers clash in Moga’, The Times of India, 27 November 2013, CXC28129414693.

   [52] DFAT Country Information Report – India, Department of Foreign Affairs and Trade (DFAT), 15 July 2015, CISEC96CF12827, p.16.

   [53] ‘Indian court jails self-styled “godman” for 20 years, security tight’, Reuters, 28 August 2017, CXC90406612960.

   Country of nationality

2. The applicant travelled to Australia on an apparently genuine Indian passport, a copy of which is contained on the Departmental file. The applicant has always represented himself to be an Indian citizen in his dealings with the Department, as well as the Tribunal. With no evidence to the contrary, the Tribunal finds the applicant is a citizen of the Republic of India and has assessed the applicant’s claims against India as his country of nationality and his ‘receiving country’ as required by s.5(1), for the purposes of ss.36(2)(a) and 36(2)(aa).

   Third country protection

3. Under ss.36 (3), (4), (5) and (5A) of the Act, the Tribunal can consider that Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently, a country apart from Australia, including countries of which the non-citizen is not a citizen.

4. However, in this decision, the Tribunal’s assessment of claims and its findings have not been decided against these provisions and have been restricted to ss.36(2)(a) and (36(2)(aa).

   Member of the same family unit

5. It is claimed by the applicant that he is married to [Ms A], born [date of birth], and that his marriage took place in Ludhiana in the Indian state of Punjab [in] 2007. It was further claimed, at the scheduled hearing, that he has never separated, although the applicant and his wife both admitted that the applicant claimed to have no longer been married when he applied for a partner visa in May 2017. There is no suggestion the applicant and his wife have any children between them.

6. Based on the available information, the Tribunal accepts the applicant is in a genuine spousal relationship with [Ms A] referred to above and that for the purposes of this review application the applicant is a member of the same family unit as [Ms A] in accordance with r.1.21(4)(a) of the Regulations.

   Credibility considerations

7. In summary, the applicant claims to fear harm if returned to India on the basis of his religious beliefs.  In particular he claims to be a devotee of DSS, a spiritual organisation led by the Guru, Gurmeet Ram Rahim Singh.  The applicant claims that since he left India in 2008, he visited the country on two occasions, during which no incidents of harm or harassment occurred. The applicant has argued that the circumstances for DSS followers have substantially deteriorated following the conviction and jailing of Guru Gurmeet Ram Rahim Singh on sexual misconduct charges on 25 August 2017.  He states the government of India conspired against Gurmeet Ram Rahim Singh, falsely accusing him of sexual wrongdoing and spreading riots in Punjab and Haryana.  He fears that if he is returned to India, he will be arrested and detained during which he will be brutalised.

8. The Tribunal acknowledges the importance of adopting a reasonable approach when making findings of credibility.[54]  However the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear, that it is ‘well-founded’ or that it is for the reason claimed.  Rather it remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. 

   [54] Guo v MIEA (1996) 40 ALD 445, per Foster J at 482 (Full Federal Court).

9. Although the concept of onus of proof is not appropriate in administrative enquiries and decision-making, the relevant facts of an individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts.  A decision-maker is not required to accept uncritically any and all of the allegations made by an applicant.[55] 

   [55] MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191 and Prasad v MIEA (1985) 6 FCR 155 at 169–70.

10. As discussed with the applicant at hearing, the Tribunal has significant concerns about his written, oral and documentary evidence, his account of his immigration history in Australia and his claims for protection, which are discussed below. 

11. The Tribunal also notes that two witnesses provided limited oral evidence and it found no significant credibility concerns with their evidence.

    The applicant’s personal background

12. There are a number of credible aspects of the applicant’s claims:

13. The applicant claimed he was born in [year] in a village, [in] the Sirsa district in the Indian state of Haryana. He claimed that his parents lived and worked in [Village 1] as [occupation] and that his father shares ownership of [land] with [paternal] uncles. He claimed he has a brother now residing permanently [overseas]. The Tribunal accepts these matters to be true.

14. The applicant claimed that he can speak, read and write Punjabi, English and Hindi; and that his ethnicity is Punjabi or Punjabi Sikh. He also claimed that he belonged to Virk or Jat Virk, which he described as a higher caste. The Tribunal accepts this to be the case.

15. The applicant claimed that he married [Ms A], an Indian national from Punjab, in 2007, that the marriage was arranged and that they do not have children. On the Tribunal’s file is a copy of the applicant’s marriage certificate, indicating his marriage to [Ms A] took place in Ludhiana in the Indian state of Punjab.[56] The Tribunal accepts this to be the case.

    [56] AAT Folio 48.

16. The applicant further claimed that he graduated with a Bachelor’s degree in India in 2006; that he remained in [Village 1] with his parents as a dependent until his departure to Australia in 2007 and that when he returned to India in 2010 and 2011 he resided with his parents, during which there were no incidents. This is also accepted by the Tribunal.

17. For the purposes of this review application, the Tribunal finds that the applicant’s home area is the Indian state of Haryana, where his parents continue to reside.

    Is the applicant a member of the claimed religion?

18. The applicant claimed that he was born into the Sikh faith tradition but is now a member of the DSS, although his parents remained Sikhs.

19. The Tribunal asked the applicant to elaborate on his knowledge of DSS’s beliefs, practices and history. He outlined to the Tribunal that Sikhs do not believe in a physical guru and that Baba Ram Riham, the current leader of DSS, is the physical Guru. He claimed that he was attracted to the message of the DSS religion of a society without caste .The applicant claimed that DSS runs charities and has organic farms and that he participated in donating blood on two occasions in the past.  The applicant claimed DSS teaching promotes vegetarianism and no alcohol consumption and claimed that he was a vegetarian. The Tribunal raised whether the applicant was aware of any of the recent controversies about Baba Ram Riham; to which he responded that Baba was charged with rape and murder, for which he was jailed for nine years and that he believed the charges were false and politically motivated. He said he was aware of reports that men were encouraged to castrate themselves but he did not believe those reports. Neither were the reports that men were encouraged to marry prostitutes and divorcées true. He said these false stories were disseminated by politicians and the leaders of Sikhism. The applicant claimed the leaders of Sikhism were particularly upset that Baba had visited Punjab and dressed as the tenth physical guru, which the applicant accepted as an incident that did occur but said the DSS leader did not mean to cause deliberate offence. He also claimed that they found torn pages of the original Holy Books of Sikhism, Guru Granth Sahib, on the ground (known as the Baragari sacrilege),[57] and falsely blamed the DSS for the sacrilegious vandalism.

    [57] Dera Sacha Sauda had a hand in Baragari sacrilege, murder of Sikh preachers: Commision report, New Indian Express, 1 July 2018, >

    During the hearing, the applicant also claimed that back in India prior to his departure to Australia in 2008, he attended and helped organise weekly satsangs by informing his and neighbouring villages. He claimed that as many as 25,000 attended a satsang in his home village of [Village 1], that he was the main organiser and that Baba Ram Rahim attended his village’s satsang about six times. (The applicant told the Department it was eight times.) He further claimed that his brother, who later migrated to [another country], continued to organise the satsangs after his departure. He also claimed that he had participated in donating blood one of the DSS’s charitable events and that he donated money to DSS’s charities both while he lived in India and Australia.

20. The applicant also provided a certificate of membership of DSS dated [date] March 2004. It is claimed to be from the general secretary from 2008; however during the scheduled hearing, the Tribunal enquired into the reasons there were signatures of the general secretary and office secretary but no names. The applicant was unable to provide any reason. The Tribunal mentioned that country information provided by DFAT stated that there are no classes of documents which are not open to fraud in India,[58] and it was open to the Tribunal to find the document was not genuine, and submitted to augment or to contrive the applicant’s claims about his fears of persecution based on religion.

    [58] DFAT Country Information Report – India, Department of Foreign Affairs and Trade (DFAT), 15 July 2015, CISEC96CF12827, p.23.

21. Based on the level of detailed responses to the Tribunal and the reasonable level of consistency between his written and oral evidence he provided both the Department and the Tribunal, the applicant was able to demonstrate a reasonable amount of knowledge about the DSS with only minor discrepancies.

22. Based on the overall evidence, the Tribunal accepts the applicant was brought up in the Sikh faith tradition and converted to DSS in or around 2004; that he regularly attended satsangs in Haryana; that he donated to this spiritual movement’s charities and participated in its socially-motivated activities while back in India. It further accepts the applicant was an active local organiser in the DSS in his home village and neighbouring villages and that he was supported by his [brother] who continued his organisational activities after the applicant’s departure.

23. The Tribunal, however, does consider that the membership certificate submitted to attest to his membership of DSS is fraudulent, based on the lack of detailed information on the certificate. But, as the Tribunal accepts the applicant is a genuine member of the DSS, it finds that this document was submitted to augment his otherwise credible and accepted claimed membership of the DSS since 2004.  In making this adverse credibility finding, the Tribunal is invited to consider that the applicant has submitted other evidence, written, oral and documentary, that has been embroidered or embellished. With this adverse credibility finding in mind, the Tribunal has considered the evidence regarding the applicant’s religious activities since he has been in Australia. 

24. The applicant’s wife claimed that she converted to the religion of her husband and his family. When the Tribunal asked the applicant’s wife whether the applicant’s parents were members of DSS, she qualified her answer that his parents remained Sikhs but she converted to the same religion as her husband and his brother. The Tribunal enquired whether her marriage ceremony in Ludhiana was a Sikh ceremony; to which she responded that it was but the ceremony was the same in Deras (the DSS). The Tribunal also accepts this to be the case.

    Credibility concerns: applicant’s visa history

25. The Tribunal has also considered the delay in applying for a protection visa and the reasonableness in applying. The Tribunal notes that it is legitimate to take into account an applicant's delay in lodging an application for a protection visa in assessing the genuineness, or at least the depth, of the applicant's claimed fear of persecution (per Heerey J, Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347).

26. Considerable time at the first scheduled hearing was pre-occupied with the applicant and his wife’s extensive visa history since they have arrived in Australia. The applicant and his wife applied for four separate student visas and both become unlawful citizens between 2008 and 2015. They became unlawful when their last student visa expired in July 2015. They claimed they became unlawful due to a migration agent or lawyer deceiving them out of their money with the false promise of work visas.

27. After 18 months in Australia unlawfully, the applicant was then detained in immigration detention in February 2017 following a police check.  During this period of time in detention, the applicant unsuccessfully applied for two criminal justice visa and invalidly applied for a partner visa. During the scheduled hearing, the applicant claimed the application for a partner visa was bogus, organised by the same migration agent or lawyer who had deceived him earlier.  The applicant’s wife, as a witness, admitted to the partner visa application being bogus and that she and her husband remained married. It was put to the applicant that the admitted fact of him applying fraudulently for a partner visa may indicate to the Tribunal that the claims, or at least some of those critical claims pertaining to a protection visa, may also be not genuine or reliable.

28. The applicant was released from immigration detention after successfully applying for a criminal justice visa in July 2017. The applicant explained that he was a witness to a kidnapping. While in the community the applicant became unlawful a second time when his criminal justice visa was cancelled in January 2018. The applicant was unsure of the reasons the visa was cancelled but suspected the case had finalised and he was not required as a witness.  The applicant was then detained on 17 March 2018 in immigration detention [and] then applied for a protection visa on 24 April 2018. He later applied for a bridging visa to be released from immigration detention, which was refused on 28 May 2018, and he then unsuccessfully appealed to the Tribunal on 31 May 2018. The decision affirming the refusal to grant the visa was dated 13 June 2018.[59]  

    [59] A copy of the decision is on the AAT file.

29. During this extensive discussion, it was noted that the applicant was aware that his wife had applied for a protection visa in August 2017, just after he was released from detention in July 2017 while holding a criminal justice visa. 

30. However, in the hearing, the applicant claimed to have a well-founded fear of persecution in 2017 when his wife had applied for a protection visa. The applicant and applicant’s wife claimed they were both owed Australia’s protection obligations based on the same fear of religious persecution as members of the DSS. 

31. It should be noted at this point that the applicant did not claim to have departed for Australia with his wife in 2008 due to a well-founded fear of religious persecution or any other reason. Nor does the applicant claim to have a well-founded fear of persecution after departing India after two visits to Haryana in 2011 and 2012. In addition, he is not claiming to have ever been threatened or harmed in the past due to his religion or any other reason amounting to a well-founded fear of persecution. 

32. During the scheduled hearing, it was put to the applicant under the Act’s adverse information provisions (s.424A/424AA) that the Tribunal had examined the 13 June 2018 decision record (1816101) regarding the decision to affirm the refusal to grant the applicant a bridging visa. The decision stated that the applicant had his vehicle stopped by the authorities [in] March 2018 and that the applicant presented a false name or names to the police; it further stated that the applicant had informed the Department in an interview on 24 April 2018 that he wished to be removed from Australia as he could return to India. It was pointed out to the applicant that he had known that his wife had applied for a protection visa in 2017 and that his protection visa application had been lodged on 24 April 2018.  It was further pointed out to the applicant that he had told the Tribunal he had a well-founded fear some five or six months before applying for a protection visa (The interview was held 8 June 2018). It was explained to the applicant that the information was relevant because the information indicates that the applicant was not a credible person: as he has a history of providing false names to the authorities; because the claims were so delayed; and because the information indicates that the applicant provided inconsistent accounts about when he feared facing harm based on his claims for protection.  It was explained to the applicant, that subject to his comments and responses, this information may make up the reason or part of the reason to affirm the decision not to grant the applicant a protection visa.

33. Having been told the applicant did not have to respond straight away, he immediately proceeded to answer the question, claiming that he wanted to return to India in March or April 2018 but he had no idea of the situation back home in India until he spoke to someone who informed him the situation was not good. The applicant claimed the interview with the Tribunal (pertaining to his bridging visa on 8 June 2018) was over the phone and with an interpreter and that he had trouble understanding the questions put to him, including the quest about the timing. He further claimed he did not intentionally set out to deceive the police by presenting other identities; it was just the applicant had identity cards of others on his person. At the end of the first hearing, which was adjourned, the Tribunal informed the applicant he was provided with an opportunity to add to these responses.  In the resumed hearing, the Tribunal invited the applicant to add to his response to the adverse information put to him in the earlier hearing. The applicant did not have anything to add about the information put to him under the Act’s adverse information provisions. The applicant did not respond.

1. As discussed in the hearing, the Tribunal undertook to check the audio file for the Tribunal interview held on 8 June 2018. It is the Tribunal’s assessment that he understood the question regarding the timing of his protection visa applicant, which was clearly put to him. The applicant provided the answer about being aware of the situation in Sirsa district had deteriorated in 2017 as to the reason for his applying for protection. While he did not specifically address the delay in applying for protection, the Tribunal is satisfied the testimony reflected Tribunal decision record indicates that the applicant had claimed to have  have subjectively held fears of persecution five or six months prior to that interview, in the context of the Tribunal’s other adverse credibility concerns. Accordingly, the Tribunal finds the applicant had provided inconsistent and contradictory accounts about the timing of his subjectively held fears of persecution, further undermining the applicant’s overall credibility.

2. There is no reliable or consistent evidence to accept the applicant’s explanation for applying for a protection visa in April 2018 had been due to not being aware of the situation in India until just prior to his application. It is clear from the applicant and his wife’s visa history that he was aware of protection visas as a migration option when his wife applied in August 2017. Given she made claims based on her religion, he was aware that he could make protection claims based on their shared religion. However the applicant only applied after he been in detention a second time and had failed to be granted a bridging visa. The evidence from the Tribunal’s bridging visa decision record undermines the evidence that the applicant ever held genuinely or urgently or deeply felt subjective fears of persecution for the claimed reasons at the time of application or even six months prior to this. The credibility of the applicant’s subjective fears of persecution for the claimed reasons is further undermined when taking into account that the applicant had knowingly and willingly applied for a fraudulent partner visa. 

3. Taking all the applicant’s extensively discrepant and inconsistent responses to the adverse information formally presented to him, the Tribunal finds the applicant was unable to adequately and consistently explain the delay in applying for a protection visa. It does not accept as credible that the applicant only lately developed such an intense fear of persecution, just after talking to someone about the situation for DSS members throughout India.  The Tribunal also finds the applicant’s explanation for providing false identities was not persuasive in the context of the other adverse credibility findings and it further indicates the applicant will knowingly and willingly contrive or at least embellish evidence to Australian authorities. 

4. Based on these adverse and earlier credibility findings, the Tribunal finds that the applicant did not have a genuinely or urgently or deeply held subjective fear of persecution based on his accepted religious membership and beliefs or any other claim pursuant to s.5J(1)(a): since he first became unlawful; since he was first placed in immigration detention; when his wife applied for a protection visa in August 2017; five or six months prior to his protection visa application; when he applied for a bridging visa while in immigration a second time; or just prior to the time of application.

5. Based on the same adverse credibility concerns, neither does the Tribunal accept that the applicant continues to have a genuinely or urgently or deeply held fear of persecution based on his accepted religious membership and beliefs or for any other reason prescribed by s.5J(1)(a), now or into the foreseeable future, if he were to return to his home state of Haryana or India more generally.

   Cumulative credibility finding

6. In this case, the adverse credibility findings regarding critical claims made by the applicant are extensive and troubling.

7. The Tribunal has earlier found that the applicant has presented a fraudulent membership certificate, that he has admitted to making a fraudulent application for a partner visa (in which he stated that he was no longer in a spousal relationship with his wife) and whose wife also admitted  the partner visa application was lodged on bogus grounds. It has made adverse credibility findings that the applicant has not provided consistent evidence regarding information he provided about his protection visa application to the Department or when he applied for a bridging visa or when he provided oral evidence to the Tribunal. The Tribunal has also made a finding arising from his visa history and his inconsistent evidence that the applicant does not have any subjectively held fears of persecution based on the accepted claim that he does belong to the DSS, if he were to return to his home state of Haryana specifically or India more generally, now or into the foreseeable future.  

8. When cumulatively considering all these adverse credibility findings, the Tribunal is not only unable to provide the applicant the benefit of the doubt about his remaining critical claims for protection arising from his accepted religious beliefs and membership of DSS, or any other related reason outlined in s.5J(1)(a).

9. Based on these cumulative adverse credibility findings, the Tribunal does not accept the applicant’s specific claim that members of the authorities in Haryana or India more generally sought information about the applicant’s whereabouts in 2017, as implausibly claimed at the end of the second hearing, given he had claimed he had not organised satsangs in the district since 2008.  It does not accept that the applicant was a significant organiser to the extent that he was a person of interest to anyone in authority, as the applicant had exaggerated his profile to augment his other credible claim he was involved in organising satsangs in the past.

10. Based on the same overall adverse credibility finding, neither does the Tribunal accept that any of the applicant’s fellow devotees of DSS who assisted him in organising satsangs in the past had been harassed, arrested, warned, detained or harmed in the past. The Tribunal notes in this regard the applicant was unable to provide any third party statements, despite being provided considerable opportunities to do so.

11. The Tribunal also finds that the applicant had significantly exaggerated the situation of DSS followers in Haryana. The Tribunal acknowledges that there was a terrible incident involving about 30 deaths and 200 injuries during a protest in Panchkula in August 2017 and that many raids have occurred at DSS centres. The applicant submitted new reports about the incident and that curfews in other parts of Haryana were put in place. However followers of DSS and supporters of the imprisoned Baba Ram Rahim are permitted to continue to follow their religion and attend satsangs affiliated with DSS throughout India. There is no country information that ordinary members cannot practice Dera beliefs or participate in organised events. Contrary to the applicant’s claims, a search of the DSS website indicates the religion continues to organise activities against prostitution, and for blood donations, tree plantations through charities and satsangs. News reports also indicate that the DSS headquarters in Sirsa has not been raided and continues to hold events such as those for International Yoga Day on 21 June 2018, this year.[60] 

    [60] International Yoga Day, 21 June 2018, Dera Sacha Sauda website: >

    Moreover, the country information, as discussed with the applicant at hearing, strongly indicated that DSS was a significant electoral force regularly courted by the leaders of the major political parties in Punjab[61]. Even after the conviction and jailing of Gurmeet Ram Rahim Singh in August 2017, the Haryana state assembly made a point of paying homage to the DSS followers killed in the violence[62]. 

    [61] Garg B, ‘Political leaders court Dera on poll eve’, The Tribune, 29 January 2012 < Rao H, ‘After Rahim’s arrest, Dera Sacha Sauda dies a slow death’, Hindustan Times, 11 November 2017.

12. Based on the Tribunal’s overall adverse credibility finding, the Tribunal also does not accept that the applicant had any strong links with the DSS in [City 1] or anywhere else in Australia and places little weight on the written statement submitted by DSS member, [Mr B], to support this claim.

13. As discussed in the hearing, when it was raised by the applicant and the witnesses, the Tribunal accepts that he and his wife tried to build a pathway towards permanent residency prior to becoming unlawful. The Tribunal, however, places no weight on this or that they experienced poor migration advice in the past in determining whether to accept that the applicant holds a well-founded fear of persecution for the claimed reasons. That is because the Tribunal finds that the critical claims regarding persecution as a person of interest had been fabricated or embellished for migration purposes.

14. In the context of the Tribunal’s other adverse credibility findings, it would be reasonable for someone who claimed to be a person of interest as a high profile DSS member to claim to have a well-founded fear of persecution since at least August 2017.

15. Had the applicant had a genuine fear of harm arising out of his circumstances, the Tribunal considers that the applicant would have sought to lodge a protection visa application earlier, and the delay leads to a consideration that his claims in this regard are not genuine. Given the abovementioned credibility findings regarding the consistency and reliability of the applicant’s evidence, the Tribunal finds that the applicant does not for any genuine well-founded fears of harm that Australia owes him protection obligations. 

    Claims for protection

16. The applicant claims to fear harm if returned to India on the basis of his religious beliefs.  In particular he claims to be a long time devotee of DSS, a spiritual organisation led by the Guru, Gurmeet Ram Rahim Singh.  The applicant claims that since he left India in October 2016, circumstances for DSS followers have changed following the conviction and jailing of Guru Gurmeet Ram Rahim Singh on sexual misconduct charges on 25 August 2017.  He states the government of India conspired against Gurmeet Ram Rahim Singh, falsely accusing him of sexual wrongdoing and spreading riots in Punjab and Haryana. 

17. At hearing I discussed with the applicant information before me from independent sources which indicated DSS was a non-profit social welfare and spiritual organisation headquartered in Haryana.  It reportedly has 44 ashrams across India and claims to have over 40 million followers worldwide.[63]  In 2007, BBC News reported that the DSS counted Sikhs, Hindus, Muslims and Christians among its followers.[64]  The applicant agreed with that information. 

    [63] Dera Sacha Sauda, undated, Dera Sacha Sauda Ashrams Across India < Dera Sacha Sauda, 2010, About Us < 18 May 2007 ‘PM urges calm over Sikh protests’, BBC News <>

    Other sources confirm the applicant’s claim that Gurmeet Ram Rahim Singh was convicted of rape and jailed on 25 August 2017, sparking riots across North India with 45 people killed and more than 300 injured.[65] 

    [65] Rao H, ‘After Rahim’s arrest, Dera Sacha Sauda dies a slow death’, Hindustan Times, 11 November 2017.

18. At hearing the applicant gave evidence that he attended monthly meetings at the Dera in Sirsa and in between those meetings, he undertook work in the field in his assigned areas.    He stated his activities included [details deleted].  He gave evidence that while DSS had many hundreds of thousands of supporters, few were given the responsibilities he had for bringing people to the Dera and converting them from other religions to DSS.

19. He claims that since the Guru’s conviction and jailing, the Indian government is trying to reduce and control the DSS membership.  He claims the allegations against the Guru that led to his conviction and jailing were false and DSS members and supporters are now being targeted by the Indian authorities and others.  He claims that as a DSS devotee and follower, he will be targeted for harm if returned to India by the Indian authorities, other extremist groups in Punjab and others who will seek revenge on him because of his role of converting people from other religions to DSS.  He claims that since the Guru’s conviction on 25 August 2017, people from Indian political parties, former supporters of DSS and the Indian authorities have repeatedly come to his family home looking for him and threatening his parents.

    Well-founded fear of persecution

20. Regardless of these adverse credibility findings, the Tribunal accepts that the applicant is a member of the DSS and that he will return as a practising member. Although the applicant has not presented credible evidence of much DSS activit since his arrival in Australia, the Tribunal has contemplated that the applicant will resume his participation in organising satsangs, charitable events, and other activities not associated with high profile members or those with greater organisational responsibility, and that he is not a person of interest due to his past organisational activities.

21. There are reports of both ordinary and higher profile members of DSS being arrested and detained by the Indian authorities that could lead to some serious harm during detention. There is also credible information that opposing Sikhs are motivated to violently confront DSS members in the state of Haryana, Punjab and other areas of India and that the authorities have not been able to quell such sectarian confrontations.

22. The country information indicates to the Tribunal that ordinary members of DSS have a chance of encountering the authorities or those who are motivated to oppose the movement, such as Sikhs or Khalists, as the movement is subject to ongoing investigations and tensions between it and the authorities and the relationship between it and followers of Sikhism remains tense. To this extent, it is accepted the applicant would be returning to a deteriorated situation in his home state of Haryana since he last visited in 2012. 

23. However, the Tribunal does not accept there to be a real chance that if he returns to India, people will specifically target the applicant due to his conversion from Sikhism or that he is a low profile organiser. As discussed in the hearing, there are as many as 400,000 DSS devotees in India and the risks of him being singled out for arrest or detention leading to serious harm, appear remote and far-fetched, since the conviction and jailing of Gurmeet Ram Rahim Singh in August 2017. 

24. There is also country information, as referred to earlier, that political leaders in authority in Haryana have protected and intervened on behalf of the DSS and its members.

25. Given that the applicant has no history of being involved in any such difficulties in the past, that it is not accepted the applicant has any profile recognised by those in authority for his religious practices in the past, and there is no credible evidence he is closely associated with anyone who had been arrested and detained in the past, there is no indication that there is a real chance of him being a person of interest to the authorities or anyone else.

26. Although the applicant and his brother converted to DSS from Sikhism, he did not advance any claims that he fears being harmed by his immediate or extended family members for this conversion. In this regard, it is noted that the applicant has not concealed his conversion from his parents and has returned to his parents who are Sikhs on two trips since his arrival in Australia.  

27. For these reasons, if the applicant were to return to Haryana, the chance of him being subjected to serious harm based on his claims regarding his accepted religious affiliation are found by the Tribunal to be far-fetched, remote and not real.

28. The Tribunal does not accept there to be a real chance that the applicant would suffer serious harm from anyone in authority in the Indian state of Haryana, including its police, or any other members of India’s authorities, Sikhism religious authorities or other groups who oppose the DSS or any other group of persons if he returns to India.  It follows that the Tribunal does not accept the applicant has a well-founded fear of persecution for any reasons claimed regarding the applicant’s religion if he returns to his home state of Haryana, now or in the foreseeable future.

29. Neither does the Tribunal accept the applicant has a well-founded fear of persecution because he would have to take unreasonable steps to modify his behaviour so as to avoid a real chance of persecution in his home state of Haryana or anywhere throughout India, that may conflict with a characteristic that is fundamental to his conscience or alter or conceal his religious beliefs, pursuant to s.5J(3).

30. For completeness, the Tribunal has considered whether the applicant faces a real chance of serious harm arising from his accepted religious background and current affiliation as a Sikh and that he is ethnically Punjabi. The applicant did not advance any other claims regarding his nationality, his political opinion, imputed or otherwise, his membership of particular social groups unrelated to his religious claims or even his marital status.  

31. As held by the Full Federal Court in Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61, the Tribunal observes that a decision-maker is not required to make the applicant’s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision-making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts. The Full Federal Court held, at [76]:

    In an inquisitorial process, it was for the respondent to put whatever evidence or
    argument he wished to the decision-maker to enable her to reach the requisite state of satisfaction.

32. Accordingly the Tribunal finds the applicant does not face a real chance of serious harm for converting from Sikhism, his marital status, his political opinion, imputed or otherwise or any of other reasons outlined in s.5J(1)(a), if he were to return to his home area of Haryana, in the reasonably foreseeable future.

33. There are no other residual claims relevant to s.5J(1)(a) to consider in this review application.

34. Having considered the applicant’s claims, both individually and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason prescribed under s.5J(1)(a), if he were to return either to his home area of Haryana or India more generally in the reasonably foreseeable future.

35. Therefore the applicant does not satisfy s.36(2)(a).

    Complementary protection provisions

36. In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), the Tribunal has considered whether it 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 will suffer significant harm.

37. As the Tribunal’s earlier finding states, India is the ‘receiving country’ for the purposes of s.5(1) of the Act.

38. In this decision, the Tribunal has made a number of adverse credibility findings that the applicant has significantly embellished his claims and the country information that he has a well-founded fear of persecution, both subjectively and objectively, if returned to his home state of Haryana.

1. Nevertheless it accepted that he belongs to and has practised a religion that has been subject to attention among the authorities in Haryana and leaders among Sikhism, namely the DSS movement.  Although the Tribunal accepts the applicant faces a chance of serious harm arising from his religion, it does not accept that the applicant was is a person of interest to anyone in authority or among the Sikh religion or that the chance of serious harm based on his religion was more than a far-fetched or remote chance, if returned to his home state of Haryana, in the reasonably foreseeable future. 

2. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the refugee definition.[66] 

   [66] MIAC v SZQRB [2013] FCAFC 33 per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297] and Flick J at [342].

3. Based on the same findings regarding a real chance of serious harm based on the applicant’s accepted circumstances, the Tribunal does not accept the applicant has a risk of any significant harm outlined in s.36(2A) as a person of interest to anyone in India. Neither does it accept the applicant faces a real risk that he will be targeted for significant harm by the police or any other arm of the Indian authorities, Sikhs or related extremist groups or any other group of persons on the basis of his past activities with DSS, or if he returns to Haryana, now or in the foreseeable future and resumes his former activities with DSS, as a necessary and foreseeable consequence of being removed from Australia to India.

4. As the applicant did not advance any other claims, there are no other residual claims relevant to the complementary protection provisions to consider in this review application.

5. Having considered the applicant’s claims, both individually and cumulatively, the Tribunal finds that there are no substantial grounds for believing that there is a real risk the applicant will suffer significant harm of any kind outlined in s.36(2A), as a necessary and foreseeable consequence of being removed from Australia to the Republic of India.

   Findings regarding the applicant’s spouse

6. Having considered all the relevant information and based on its earlier findings pertaining to the applicant’s spouse, the Tribunal notes that the applicant is a member of the same family unit, in accordance with r.1.21 of the Regulations, as his wife, who is currently in Australia.

7. Based on this decision, as the applicant did not meet ss.36 (2)(a) and 36(2)(aa), it does not appear that she will be eligible for a protection visa as she does not satisfy s.36(2)(b) or s.36(2)(c).

8. Based on the available information, the outcome of the protection visa application pertaining to the applicant’s spouse is yet to be determined by the primary decision maker.

9. The Tribunal, accordingly, is unable to determine whether the applicant either satisfies or does not satisfy s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa.

   Conclusion

10. 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).

11. 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).

12. There is no information before the Tribunal 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

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

    Brendan Darcy
    Member

    
    

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation
    …
    cruel or inhuman treatment or punishment means an act or omission by which:

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

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

    but does not include an act or omission:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    …

    5J Meaning of well-founded fear of persecution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    (b)    significant physical harassment of the person;

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

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

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

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

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

    5K  Membership of a particular social group consisting of family

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

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

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

    (i)the first person has ever experienced; or

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

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

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

    5L  Membership of a particular social group other than family

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

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

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

    (c)    any of the following apply:

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

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

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

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

    5LA  Effective protection measures

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

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

    (i)the relevant State; or

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

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

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

    (a)    the person can access the protection; and

    (b)    the protection is durable; and

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

    ..

    36Protection visas – criteria provided for by this Act

    …

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

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

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

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

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

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

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

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

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

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

    …