1822296 (Refugee) - [2023] AATA 3028

1822296 (Refugee) [2023] AATA 3028 (19 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Gursharan Singh (MARN:0640600)[1]
[1] On and from 31 March 2023. Prior to that date Mr Byron Nazer (MARN: 0747684)
CASE NUMBER:  1822296
COUNTRY OF REFERENCE:                   India
MEMBER:Mark Bishop
DATE:19 June 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 19 June 2023 at 2:21pm
CATCHWORDS
REFUGEE – protection visa – India – religion – Sikh – political opinion – political commentary by social media – anti-Modi government – pro-Khalistan separatist – new claims not originally raised before the delegate – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 417, 423A, 426, 426A, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
EQU19 v MICMSMA [2022] FedCFamC2G 609
MIAC v Li (2013) 249 CLR 332
Morato v MILGEA (1992) 111 ALR 417
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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 16 June 2016 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Procedural matters prior to hearings
The Tribunal provides the following background detail:
·On 22 March 2023 the MA for the applicant contacted[2] the Tribunal and advised he did not realise it was an in-person hearing (as per the hearing invitation sent 9 February 2023). The MA confirmed to the Tribunal Officer the review applicant understood he would need to attend in person. The Tribunal agreed to the MA request for the MA to attend the hearing by video. The MA advised he had previously participated in other hearings using MS Teams. As the request from the MA was made after the close of business on the day of the hearing the Tribunal reviewed the matter the following morning. Arising out of this review the Tribunal confirmed the hearing was set down for 30 March 2023 and not 23 March 2023 as stated by the MA.
·On 29 March 2023 the applicant wrote[3] to the Tribunal and advised he was having “was having flu-like symptoms but this morning, my throat is so much in pain that I am not able to speak and also my body temperature is very high…I did covid test and it’s positive. Please advise what to do as I am not able to stand with a high temperature and sore throat with difficulty breathing…” Attached to this letter were two pictures of a temperature of 100.9 degrees F and a screenshot of a Covid-19 test device. The Tribunal had regard to the relevant Practice Direction[4] which took effect from 1 March 2023. The applicant letter to the Tribunal did not comply with clause 9.15 of this Practice Direction. Clause 9 Adjournments (postponements) sets out the following:
[2] See Case Note number 3
[3] Doc ID number 10904384
[4] See clause 9 Adjournments (postponements) of Migration and Refugee Division Practice Direction dated 22 February 2023. current. The Tribunal notes previous iterations of the Practice Direction were effective from 1 July 2015 and 1 August 2018. Clause 2.2 of the current Practice Direction states “…2.2 This Direction takes effect from 1 March 2023. It applies to all applications, whether lodged before, on or after this date, and remains in effect until it is superseded or revoked.”
Adjournments (postponements)
9.13 The Tribunal will not postpone a scheduled hearing unless there are good reasons to justify the postponement.
Note: The unavailability of a representative may not be, of itself, a sufficient reason to grant a postponement. Requests for a postponement will be considered on a case by case basis.
9.14 If you want to ask us to postpone a scheduled hearing, you should make the request as soon as you become aware that a postponement is required. Your request should:
(a) be in writing;
(b) explain why a postponement is necessary; and
(c) be accompanied by any supporting evidence.
9.15 If the request for postponement is based on medical reasons, you should give us evidence from a medical practitioner that sets out:
(a) when you had your appointment with the medical practitioner;
(b) that you are not fit to give oral evidence at the scheduled hearing; and
(c) when the medical practitioner thinks you will be fit to give oral evidence at a hearing.
Note: A medical certificate stating you are not fit for work or study will not generally be sufficient.
·The applicant did not provide any detail as to a medical appointment (past or proposed) and did not provide any medical statement that he had indeed contracted Covid. The applicant did not provide evidence of an appointment with a doctor. The applicant did not provide a copy of a medical certificate.in any form. The applicant did not provide a copy of a medical certificate that complied with clause 9.15 of the practice direction. The Tribunal was unable to discern any firm linkage between temperature pictures and the applicant and was unable to draw any conclusions the applicant had Covid. As the MA for the applicant was attending the hearing by remote means the Tribunal exercised its discretion and made arrangements for the applicant to attend the scheduled hearing and give evidence by remote means. Subsequent to the hearing the applicant did not provide any medical or other documentation to the Tribunal that confirmed his self-diagnosis of Covid.
·There is insufficient evidence before the Tribunal to warrant a finding the applicant had contracted Covid on or around 30 March 2023.
The applicant who claims to be a citizen of India applied for the visa on 17 September 2015. The delegate refused to grant the visa. On the day prior to the hearing the solicitor for the applicant wrote[5] to the Tribunal and requested the applicant attend the hearing remotely. The Tribunal contacted the applicant to make the necessary arrangements and the applicant advised the Tribunal Officer he wished “…to participate via phone despite me advising that the presiding member's preference is by video.”[6] As the Tribunal had already agreed to a similar request for the solicitor the Tribunal agreed to the applicant request to participate in the hearing via mobile phone. The solicitor for the applicant attended the hearing by video link.
[5] Doc ID number 10904811
[6] See Task number 12.
The applicant provided a copy of the decision record to the Tribunal.
The Tribunal affirmed the delegate’s decision and that decision was set aside by the Federal Circuit Court.[7] The matter is now before the Tribunal pursuant to an order of the Court. The applicant provided a written summary of the background to this review application.[8] In essence as submitted by the applicant the Tribunal as then constituted confirmed a prior decision to dismiss the application pursuant to s 426(1C)(b) of the Act with mistaken reference to third party reinstatement application and without properly considering the reinstatement application. That decision was affected by jurisdictional error.[9]
[7] Doc ID number 4550319
[8] Doc ID number 10863154
[9] Doc ID number 10863154 page 2.
As outlined above in paragraph 2 the applicant appeared before the Tribunal on 30 March 2023 to give evidence and present arguments. The solicitor for the applicant also made oral submissions to the Tribunal.
The applicant was represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
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
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Reinstatement decision
Tribunal decision in matter 1609633
The delegate’s decision of 15 June 2016 now comes before a newly constituted Tribunal to be reviewed again. The FCCA has directed that the Tribunal must reconsider the Applicant’s case in accordance with the law.
The Tribunal considers it appropriate to approach the Applicant’s case ‘afresh’. The Tribunal recognises that it is obliged to take into account all relevant evidence that remains current that was before the Tribunal at the previous hearing, and any further relevant material produced by the Applicant. However, as it is newly constituted, the Tribunal also recognises that is obliged to make an independent assessment as to whether the Applicant meets the primary criteria for the grant of a Protection Visa.
The applicant’s application was set down for hearing by the Tribunal on 21 March 2018. The review applicant did not appear at the Tribunal and his application was dismissed on the basis that the review applicant did not appear before the Tribunal at the time and date of the scheduled hearing[10].
[10] Non-Appearance decision 21 March 2018 in Case number 1609633 See Doc ID number 4147543
The review applicant was notified of the dismissal decision and given a copy of a written statement setting out the decision and reasons for the decision, in accordance with the provisions of the Act. The review applicant was advised that a reinstatement application could be sought within 14 days of receiving the dismissal statement and that a failure to apply for reinstatement within the 14 day period would result in confirmation of the dismissal.
The review applicant did apply for reinstatement on 3 April 2018 within the requisite 14 days and provided a written statement and medical certificates[11] confirming visits to a doctor. However, the Tribunal refused his application for reinstatement and confirmed the decision to affirm the decision under review on 4 April 2018.[12] The Tribunal gave down written reasons[13].
[11] Doc ID number 4184109 in Case number 1609633.
[12]
[13] In particular see paragraphs 5 and 6 of the Confirmation of Dismissal.
Application to Federal Circuit Court
The review applicant applied to the Federal Circuit Court seeking a review of the Tribunal’s decision in matter number1609633. On 31 July 2018 August 2020 the FCCA made the following Orders:
1. A writ in the nature of certiorari issue quashing the decision of the second respondent dated 4 April 2018 (Administrative Appeals Tribunal case number 1609633).
2. A writ of mandamus issue directed to the second respondent requiring it to reconsider and re-determine according to law the applicant's application for reinstatement made pursuant subsection 426A(1B) of the Migration Act 1958 (Cth) on 3 April 2018.
3. The first respondent pay the applicant's costs fixed in the sum of $1,650.
THE COURT NOTES THAT:
4. On 28 June 2016 the applicant applied to the second respondent for review of a decision by a delegate of the first respondent refusing to grant him a Protection (Class XA) (subclass 866) visa (the application).
5. The applicant did not appear before the second respondent on the day on which, and at the time and place at which, he was scheduled to appear (Court Book (CB) 119-120).
6. On 21 March 2018 the second respondent dismissed the application pursuant to paragraph 426A(1A)(b) of the Migration Act 1958 (Cth) (the Act) (CB 124).
7. On 29 March 2018 the second respondent received an application for reinstatement pursuant to subsection 426(1B) of the Act that concerned a review application made by an unrelated third party (the third party reinstatement application) (CB 127).
8. On 3 April 2018 the second respondent received an application for reinstatement pursuant to subsection 426(1B) of the Act made by the applicant (the reinstatement application) (CB 128-137).
9. On 4 April 2018 the second respondent confirmed its decision to dismiss the application pursuant to paragraph 426(1C)(b) of the Act, with mistaken reference to the third party reinstatement application, and without properly considering the reinstatement application (CB 141-142).
10. In the circumstances, the first respondent concedes that the decision of the second respondent to dismiss the application pursuant to paragraph 426A(1C)(b) of the Act is affected by jurisdictional error. Specifically, the first respondent concedes that the second respondent failed to carry out its statutory duty under subsection 426A(1C) of the Act to make a decision on the reinstatement application as actually made by the applicant.
Application pursuant to s.426A(1B) of the Migration Act 1958.
The first matter for the Tribunal is the applicant’s application pursuant to s.426B of the Migration Act 1958. Pursuant to the section, the Tribunal may reinstate the application and give such further directions as appropriate in the circumstances, or confirm the decision to dismiss the application.
The Tribunal has considered the material that was provided by the applicant to the Court on the application for review. Specifically, the applicant’s statement and relevant medical certificate dated 21 March 2018 and supporting medical documentation as to appointments, x-ray requests, echocardiogram request and medical report.
On 4 April 2018 the Tribunal (differently constituted) issued a Confirmation of Dismissal[14] in Case number 1609633. The Tribunal in paragraphs 5 and 6 provided reasons for refusing to reinstate the review application. The FCCA addressed these reasons in paragraph 19(9) above. In this Confirmation of Dismissal decision the Tribunal did not address the relevant Practice Direction in force at the time of the decision.
[14] Doc ID number 4185841
The Tribunal, having regard to documentation provided and summarised above at paragraph 21 provided notes the applicant’s condition was described by the applicant in the words of his treating medical practitioner as “…that it looks like muscle pain and should go away after some massage and Panadol…” None of the 7 documents provided to the Tribunal set out the medical condition of the applicant. The documents showed 3 consultation appointments post the day of the scheduled hearing and requests for x-rays and thyroid tests. Whilst the wording of the medical certificate did not specifically identify the applicant’s medical condition, the Tribunal in this instance does not consider that the applicant is responsible for the wording of the medical certificate. The applicant did not prepare the medical documentation. The Tribunal accepts, that if the applicant was unable to attend his usual occupation on the relevant day (the applicant holding at the relevant time a senior supervisory position on a full time basis), he was also unable to attend the hearing before the Tribunal to give evidence and present arguments.
In these circumstances, the Tribunal grants the reinstatement[15] of the application pursuant to s.426A(1C)(a) of the Act.
[15] The Tribunal notes an identical process was followed in Case number 2014358 dated 4 February 2022 by a (differently constituted) Tribunal.
On 11 May 2023 the Tribunal wrote[16] to the applicant in the following terms:
·I am writing in relation to the application for review made by you in respect of a decision to refuse to grant a Protection visa.
·The Tribunal confirms receipt of your submissions received by email on 1 May 2023 including submissions relating to the consideration of the reinstatement application pursuant to s. 426A(1B) of the Migration Act 1958 (Cth) in your related case 1609633, which was subsequently appealed to the Federal Circuit Court of Australia (FCCA).
·The Tribunal has had regard to the decision in matter 1609633 and also the Orders made by the FCCA on 13 July 2018 which includes the following:
2. A writ of mandamus issue directed to the second respondent requiring it to reconsider and re-determine according to law the applicant's application for reinstatement made pursuant subsection 426A(1B) of the Migration Act 1958 (Cth) on 3 April 2018.
·The Tribunal has considered the material provided by the applicant and in these circumstances, the Tribunal confirms that the matter has been reinstated pursuant to s 426A(1C)(a) of the Migration Act 1958 (Cth).
·The Tribunal will combine a formal decision on the reinstatement application with the final decision in this matter.
·The hearing listed for 9:30am on Friday 12 May 2023 will proceed as scheduled.
[16] Doc ID number 11048775
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant lodged an Application for a Protection Visa on 19 September 2015.[17] The delegate summarised the applicant’s claims as:
·The applicant claims he has applied for numerous jobs in India and has been unable to secure employment. He fears if he returns to India he will suffer significant harm as he will be financially destitute and unable to subsist.
·It is acknowledged the applicant does not have the strongest claims to meet the relevant criteria for a Protection visa and in the case the application is refused, [the applicant] will be seeking the Minister’s intervention under s417 on the basis of unique and exceptional circumstances which engage the public interest’.[18]
[17] See Departmental file pages 1 to 24.
[18] See decision record page 2.

The [then] solicitor for the applicant provided a written submission to the Tribunal that set out the following:
·    [The applicant] arrived in Australia in July 2006 as the holder of Student visa. This visa was extended until 15 March 2009. [The applicant] has remained here ever since. For the past two years [the applicant] has worked as a [Occupation 1] at [Employer 1] and is a valued employee.
·    We believe that [the applicant] has been unlawful since the expiry of his Student visa in 2009 or sometime thereafter.
·    [The applicant] instructs that he has applied for numerous jobs in India and has been unable to secure employment. He fears that if he returns to India he will suffer significant harm as he will be financially destitute and unable to subsist. He articles these claims under s 36(2) (aa) of the Act.
·    It is acknowledged that my client does not have the strongest claims to meet the relevant criteria for a Protection (subclass 866).[19]
[19] See correspondence from Clothier Anderson, solicitors dated 16 September 2015 at page 26 of Departmental file.
The delegate made a finding as follows:
·A person to whom Australia owes protection obligations under the Refugees Convention is a person who has, in the terms of that Convention, a well-founded fear of persecution ‘for reasons of race, religion, nationality, membership of a particular social group or political opinion’.
·A person who has a well-founded fear of persecution for reasons other than a Convention ground is not a refugee within the terms of the Convention.
·The Convention definition does not extend to all persons who have a well-founded fear of being persecuted in their country of nationality; it requires that there be a fear of being persecuted for one of the specified reasons (the Convention grounds). Those reasons may of course overlap, but a recognition that this is so should not obscure the fact that a well-founded fear of persecution [for] a specified reason must be shown. (Black CJ in Morato v MILGEA (1992) 111 ALR 417 at 420) (Morato’s case).
·The applicant claims he does not want to return to India as he will be financially destitute and unable to subsist.
·There is no information before me to indicate the applicant’s fear of harm is for reasons of race, nationality, political opinion, religion or membership of a particular social group.
·When considering the applicant’s migration history, his lack of engagement with the department, delay in applying for protection and the applicant’s representative’s submission which confirms the applicant’s intention to apply for Ministerial intervention in the event the applicant’s Protection visa application is refused, I find it likely the applicant applied for a Protection visa as he had no other migration options available to him to prolong his stay in Australia.
·I am not satisfied that there is a real chance of persecution for one or more of the reasons mentioned in subsection 5J(l)(a) of the Act in the receiving country. Therefore, the applicant is not a refugee as defined in section 5H of the Act and the criterion in paragraph 36(2)(a) of the Act is not satisfied for this reason.[20]
[20] See decision record page 5.
On 9 February 2023 the Tribunal[21] wrote to the applicant and invited him to attend a review hearing scheduled for 30 March 2023. The Tribunal advised the applicant he “…should provide a written submission setting out all claims made and maintained by the applicant by 23 March 2023.”[22] and in addition “…please provide all documents you intend to rely on to support your case by 23 March 2023. The decision made by the department should set out the reasons for the decision, and you should have regard to these, and any changes in your circumstances, in providing documents and preparing for the hearing”[23].
[21] Doc ID number 10723381
[22] Doc ID number 10723381 page 1.
[23] Doc ID number 10723381 document 2 page 2 of 4.
In response on 17 March 2023 the applicant provided legal submissions and copies of various medical bills and receipts dated circa March 2018.[24] As outlined above the solicitor for the applicant wrote to the Tribunal on 29 March 2023 and advised “[The applicant]…is also requesting to attend the hearing remotely. We will appreciate it if the Presiding Senior Member will give [the applicant] leave to appear remotely”.[25]
[24] See paragraph 5 above and Doc ID numbers 10863154, 10863155, 10863156, 10863157, 10863158, 10863160, 10863161 and 10863162.
[25] Doc ID number 10904581.
From 7 November 2015 until date of decision the applicant resided in Australia as the holder of a Bridging Visa C without discretionary or mandatory conditions.[26] In evidence he advised the Tribunal he had work rights from this date and was employed as a [Occupation 1] earning approximately $1,500 per week net plus superannuation.
[26] Doc ID number 10710952
Prior to the first hearing the applicant did not provide further written submissions that addressed his claims as outlined in his Application for a Protection Visa and summarised above[27].
[27] See paragraph 13 above.
Evidence at first hearing
In evidence at the first hearing the applicant advised the Tribunal as follows:
·He had resided in Australia since 2006 and had not returned to his home country. During that lengthy period of residence he was an illegal overstay from 2009 until 2015. He lodged the current Application for a Protection Visa on 17 September 2015. He advised the Tribunal the reason for this 6-year delay was due to the fact he had a fear that if people knew he was in Australia it would not be good for him. He did not provide any particulars as to how or why it would not be good for him and apart from this general assertion did not provide any detail to support this claim. The Tribunal was unable to find any information on the Departmental file or Tribunal file that supported this assertion.[28]
·He still had family in the home country but had not spoken to his parents for a year.
·He confirmed he had not provided a written submission to the Department and had not attended for a scheduled Department interview. He confirmed he had not provided a written submission to the Tribunal that addressed the merit of his claim for Protection.[29]
·He advised he was unmarried and did not have any children.
·He advised his claim for protection remained that he had applied for numerous jobs in India prior to 2007 and was unable to find employment.
[28] See Departmental file page 26 re letter dated 16 September 2015 from Clothier Anderson, Immigration Lawyers re grounds in support of Application for a Protection Visa, page 95 and letter dated 13 October 2015 from Clothier Anderson, Immigration Lawyers re Application to change Bridging ‘C’ visa conditions – Permission to work and study plus decision record as set out in related case number 1609633 as provided by the applicant.
[29] Excluding the submissions provided to the Tribunal and identified in footnote 14 above.
In response to a question from the Tribunal he advised he had a new ground and was fearful of harm because there was discrimination against Sikhs in India and he would not have freedom to speak his mind. He confirmed he did not have any direct or indirect experience of this discrimination as he had not resided in India since 2006. He thought he was aware of this alleged discrimination because of news from friends in Australia. He advised he had not been in contact with his family for over a year. He did not provide any written submissions or refer to any documents, information or country information in support of this submission. He advised the Tribunal he had raised the issue of his adherence to the Sikh faith with his then solicitors in 2015 but had decided not to pursue the matter. Later in evidence he said he could not recall raising this matter and was unsure if he did. Arising out of this evidence the Tribunal came to the view the applicant appeared to have raised a new protection claim that warranted the attention of s 423A of the Act. See later[30] at paragraphs 67 and following.
[30] See generally paragraphs 67 to 83
Request for Adjournment
At the conclusion of the hearing the Tribunal invited the solicitor for the applicant to make oral submissions. The solicitor advised the Tribunal he was not aware the hearing was a hearing to determine the review application on merit. The Tribunal reminded the solicitor of the detail as to the review hearing set out in the hearing invitation[31]. This invitation clearly states it is an invitation to attend a hearing, the necessity to provide written submissions, the fact the Tribunal had considered the material before it but was unable to make a favourable decision on this information alone, the invitation to the applicant extended to the giving of evidence and presentation of arguments, the necessity to provide all documents intended to be relied upon, and the fact that the representative should provide a written submission setting out all claims made and maintained. In addition the invitation to attend the hearing contained a copy of an AAT Fact Sheet that stated in the opening paragraph “the hearing is an opportunity for you to give evidence and present arguments to us relating to the issues arising in your case”.
[31] Doc ID number 10723381
The Tribunal is of the view the solicitor for the applicant and the applicant had an understanding of the nature of the order of the Federal Circuit Court. The Tribunal is of the views the solicitor for the applicant would be well aware or should be aware the instant review hearing was a continuation of the hearing in Case number 1609633. The Tribunal notes it forwarded[32] to the solicitor for the applicant a letter on 1 February 2023 that stated the following:
·The applicant’s file is now being prepared for allocation to a tribunal member. As this may result in a hearing being scheduled:
·If the applicant has any additional evidence that is relevant to their application, please send this to us as soon as possible.
·If the details of the applicant’s representative have changed, please provide the tribunal with the details of the applicant’s current representative as soon as possible.
·Please also complete and submit a pre-hearing information form within 7 days of receiving this email.
[32] Doc ID number 10697465
The Tribunal notes the applicant signed and dated the Hearing Information Form on 2 February 2023 and the solicitor for the applicant returned[33] same to the Tribunal on 2 February 2023.
[33] Doc ID number 10702694
The Tribunal is of the view the solicitor for the applicant was well aware of the nature and purpose of the proceedings[34]. The Tribunal is of the view the applicant was well aware of the nature and purpose of the hearing. An applicant has a right not to attend a hearing. An applicant has a right not to make written submissions to the Tribunal. An applicant has a right to instruct his migration agent or solicitor not to make written submissions on his behalf. The Tribunal finds it implausible the solicitor for the applicant and member of MARA was not fully aware of the nature of the review application proceedings. The Tribunal is satisfied the applicant was well aware of the nature and purpose of the hearing.
[34] The Tribunal notes the solicitor for the applicant is not a sanctioned migration agent. See Task Details numbers 4 and 5.
The solicitor for the applicant did not make a request for an adjournment. The applicant did not make a request for an adjournment. The Tribunal gave consideration to and determined to treat the submission of the solicitor for the applicant as set out in paragraph 34 as a request for an adjournment.
The High Court of Australia (HCA) in MIAC v Li (2013) 249 CLR 332 gave consideration to the factors relevant in a request for adjournment. The High Court held that the Tribunal must not arbitrarily exercise its discretion whether or not to grant an adjournment but rather must do so by reference to the facts and circumstances of the individual case and in a manner, which is reasonable and has regard to the statutory purposes of s.360. In considering reasonableness, the Court considered the Tribunal’s statutory purpose to conduct a conduct its review in a manner which ‘is fair, just, economical, informal and quick’.
For almost two decades the applicant and his solicitors have been in contact with the Department and the Tribunal concerning various applications for visas. The solicitor for the applicant is a registered migration agent and as he advised experienced in appearing before the Tribunal. The applicant and his solicitor in the view of the Tribunal have exercised their right on numerous occasions not to make written submissions or attend for interviews. In his various engagements with the Department and Tribunal the applicant has retained legal counsel. There is little[35] before the Tribunal that suggests that advice provided to the applicant in these various engagements has been anything but competent. Having exercised his right not to provide written submissions the Tribunal is not persuaded of any merit in this implied request for an adjournment.
[35] Excluding, of course the evidence and later submissions relating to new claims under s 423A of the Act.
The substance of the applicant’s claims for protection are outlined in paragraph 14 above. Unemployment or the inability to gain job in India prior to 2006 is unfortunate. The applicant claims he does not want to return to India as he will be financially destitute and unable to subsist. The applicant has not provided any information to the Tribunal that suggests his claims come within the grounds specified in the Act. Unemployment as submitted by the applicant is not a ground to fear harm for the reasons set out in the Act.
At the conclusion of the hearing the Tribunal gave further consideration to the oral submissions of the solicitor for the applicant. An applicant has a right to proper legal advice and sound legal representation. He is entitled to have his arguments and or submissions put properly to the Tribunal for consideration. That after all is the critical purpose of a review hearing. In the circumstances as outlined above the Tribunal came to the view there was a possibility of some confusion in the mind of the solicitor for the applicant as to the purpose of the review hearing.
Accordingly at 3pm on the day of the hearing the Tribunal wrote[36] to the applicant and advised the Tribunal had determined to give the applicant an opportunity to provide written submissions that address the claims for protection and the Tribunal requested such written submissions be provided by 5pm Thursday 6 April 2023.
[36] See Document ID number 10910876
Arising out of the correspondence outlined above the applicant appointed a new MA[37] who wrote to the Tribunal enclosing a new completed MR5 form and asked the AAT as a matter of urgency to provide certain files and not make a decision on the review application until the newly appointed MA was able to receive further instructions from the applicant. The MA advised the Tribunal he would need ‘reasonable time’ to take further instructions from the client in order to help him provide a proper response. Arising out of this correspondence the Tribunal granted[38] the EOT until 12 noon Thursday 13 April 2023 and advised the applicant in writing[39] of the relevant time frames involved in granting request to the documents. The Tribunal issued the necessary administrative direction[40] to make sure this was carried out as a matter of urgency. The information was released[41] to the applicant on 4 April 2023
[37] See Doc ID number 10915157
[38] See Doc ID number 10924316
[39] See Doc ID number 10920055
[40] See Tasks number 18
[41] Document ID number 10925070
On 12 April 2023 the applicant provided[42] further written submissions to the Tribunal inclusive of an applicant statement, submissions and two Facebook posts. The Tribunal provides the following summary:
[42] Document ID number 10946198
Statement
·He arrived in Australia in 2006 as the holder of a student visa and applied for a protection visa in 2015.
·He was politically active[43] in India prior to 2006.
[43] The Tribunal notes the applicant’s DoB is [date]
·The BJP let Modi Govt came to power in 2014. He is anti-Modi, he is a Sikh, it is his religious duty to fight injustice and on a number of occasions he posted against Modi government policies.
·Since 2021 it is clear the Indian government interferes in Australia and targeted people who opposed the Modi government racist policies. People who opposed government policies were picked up by Indian police.
·Under the National Security Act in India the accused has to prove he is not guilty. Legal representation is denied under the National Security Act.
·Around December 2022 he found out Indian authorities are now searching through Facebook pages of people and then charge them under the NSA. Even though he searched and deleted his posts he is afraid the Indian government has created his profile and will be arrested as soon as he lands in India.
·No part of India is safe for him. Indian agents have been caught spying on Sikhs. He suspects the Indian authorities are funding organisations to spy on activists like him. Persecution of minorities are now happening at the highest scale since 1947.
·Punjabis and Sikhs are currently under mass repression by the Indian government.
·In he returns to India he will be arrested by the authorities and police may show him as a ‘disappeared person’. If not killed he will end up in court for 20 years. Indian police and courts do not give bail to members of minority communities.
Submission
·The applicant arrived in Australia on 21 July 2006 as the holder of a student visa and has resided in Australia since that date. He is of Punjabi ethnicity and the Sikh religion.
·He was advised by his then solicitors in 2015 there was a basis for him to lodge a complementary protection claim and future application for Ministerial Intervention (MI)[44].
·Relevant legislation (full extract).
·Applicant claims of protection because he is a refugee and in the alternative under complementary protection.
·Refugee claim and references to his statement of a well-founded fear of being persecuted for reason of his religion and for reasons of his political opinion. It is his religious duty to fight injustice and the Modi government considers this to be anti -national.
·Despite being a graduate [in Discipline 1] he will find it difficult to find a job in India as he will be known as a Sikh who is anti-Modi.
·Under complementary protection the applicant fears persecution from the Indian Modi government authorities inclusive of police and also from Hindu nationalist organisations. He is not able to relocate anywhere in India.
[44] See page 26 of Departmental file re letter from Clothier Anderson concerning claims under s 36(2)(aa) of the Act re complementary protection and statement that “…It is acknowledged that my client does not have the strongest claims to meet the relevant criteria for a Protection (subclass 866].” In addition see paragraphs 33 and 34 above as to applicant evidence to the Tribunal.
Social Media posts
The applicant provided a copy of a post, dated 24 September 2020, in the name of [applicant name] with the hashtag #standwithfarmerschallenge with 24 likes.
The applicant provided a copy of a post, dated 1 October 2021, in the name of [applicant name] with 3 men and commentary in Indian and untranslated[45].
[45] The Tribunal notes that in the hearing invitation the Tribunal advised the applicant “…Any documents or written arguments sent to us should be in English and if not then accompanied by a

On 14 April 2023 the applicant[46] provided[47] to the Tribunal a further response to hearing form[48] and additional brief statement from a friend summarised by the Tribunal as follows:
·The statement writer is a friend of the applicant.
·The statement writer attended a meeting to vote in a Khalistan referendum on 29 January 2023 along with approximately 250 people standing in groups and socialising in a peaceful manner. Many people were taking photos. The statement writer said the applicant might appear in some of the photos. The following day the statement writer informed the applicant there might be Indian spies in the crowd. He now believes the applicant might be at risk if he returns to India, Indian authorities might arrest the applicant, Indian authorities are known for slapping victims with false cases and the applicant coming from a minority will struggle to get bail from the courts.
[46] The statement writer is an Australian citizen with DoB [date[
[47] Document ID number 10955774
[48] In which the MA for the applicant advise he had not received an audio recording of the first hearing. The Tribunal notes all relevant information was released by the Tribunal pursuant to an administrative direction on 4 April 2023 and the release of audio tapes is a matter within the discretion of the Tribunal.
In light of the circumstances as outlined above on 12 April 2023 the Tribunal wrote to the applicant and invited him to attend a further review hearing schedule for 20 April 2023[49].
[49] See paragraph 25 above
As outlined below the Tribunal made arrangements[50] for a second hearing and invited the applicant to attend. Because of the unfortunate developments as outlined in this decision record and prior to commencing examination at the second hearing the Tribunal advised the applicant it would examine him again and at a minimum ask all of the same questions as had been asked at the first hearing.
[50] See generally paragraphs 33 to 41 below.
Evidence at second hearing
In light of developments that occurred in the first hearing the Tribunal separately asked the applicant and his MA if each understood the purpose of the hearing. Both provided an explanation that satisfied the Tribunal they were aware of the purpose of the hearing. The Tribunal then advised the applicant it would ask all the questions again that had been asked at the first hearing.[51] The applicant advised the Tribunal he understood this process. In particular the Tribunal notes the following exchange:
[51] Audio tape second hearing commencing 06:00.
·     Member:         Mr. [applicant name], before I get into my questions, do you understand the purpose of today’s hearing?
·     Applicant:       Yes
·     Member:         What do you understand?
·     Applicant:       I’m here to challenge the department decision to cancel my protection visa application.
·     Member:         OK, alright. And Mr Singh, representative, do you understand the nature and purpose of today’s hearing.
·     MA:                 Yes I do.
·     Member:         And what do you understand, sir?
·     MA:                 I’m here to assist my client in giving his evidence. I can … advice, but not the evidence
·     Member:         And what do you understand the purpose of the hearing?
·     MA:                 The purpose of the hearing is to review the decision of the Department and you will determine whether my client is entitled to a protection visa or not
·     Member:         Gentlemen the reason I ask that question is because at the last hearing, your representative advised me, I think on 4 separate occasions, you were on the phone and he was on video, that he didn’t understand the nature of the hearing and that’s why….
·     MA:                 [Interrupting] Member, I….
·     Member:         No, no, no. Mr Singh, I can tell you this. There was no one more surprised in the room that day, than me, to hear an experienced solicitor, say that he didn’t understand the purpose of the hearing. There is no reflection sir upon yourself, no reflection at all. I’m just making sure that the hearing is done properly according to law.
·     MA:                 Thank you.[52]
[52] Audio tape second hearing commencing 08:00
In evidence at the second hearing the applicant advised the Tribunal as follows:
·He is not married, does not have any children, works as a supervising [Occupation 1], earns a salary of approximately $75,000 net plus superannuation, his mother is alive and lives in India, his father and grandparents have passed, his brother lives in a large town close to his home village, his home village has a primary school, the nearest police station is approximately 15 kilometres away and he is not aware of any prohibition about Sikhs being employed in the police department in India.
·He completed high school in [year]. He attended [University 1][53] in the [state] of Karnataka in the south of India about 2000 kilometres from his home village in Punjab state in the north of India. He advised there was a minimal Sikh population in this state[54]. He thought it a similar size to Adelaide. He graduated from this university in June/July 2004 with a Bachelor [degree in Discipline 1].
[53] Also known as [other names].
[54] The 2011 census of India shows the demographics of Karnataka to be 84% Hindu, 12.92% Muslim, 1.87% Christian, 0.7% Jains, 0.2% Buddhist and<0.1% Sikh see www. Indiacensus.net. In addition the 2023 Indian census shows a Sikh population of 2,037 persons or 0.04% out of a population of 4,779,661 persons see IndiaCensus.net
·Whilst at university he attended protest marches. He did not hold elected office in any political party whilst at university. He did not hold executive office in any political party whilst at university. He did not hold any paid position in any political organisation whilst at university. He does not have a criminal record in India or Australia. He advised he had been detained in the local police station on a number of occasions. No formal complaints were lodged. He was not charged with any offence. At the completion of his university studies he returned to his home village.
·In his final year at university he started to apply for jobs but was unsuccessful as he had limited work experience and did not fit the internal lists of larger firms. He applied for a student visa in January/February 2006 and departed India in June 2006.
·Upon return to his home village his parents were frustrated at his inability to get a job. They wanted him to do something. In discussions with his parents and an uncle it was decided to send him overseas so he could see what the world held for him. His principal reason for leaving India was to seek further qualifications and get a job in his field. His parents agreed to pay his university fees and cost of living in Australia. Whilst studying at [University 2] he had a job part time in a [business] and worked approximately 20 hours pers week
·He enrolled in Master degree [in Discipline 1] at [University 2]. He successfully completed 3 semesters and then stopped studying because he had become aware from social media posts that the government of India was targeting Sikh youth in the Punjab. He was not a member of any political party in Australia and has not held any executive office or political office in any party whilst resident in Australia.
·He was not involved in any political activity during his time at [University 2]. He was not involved in any Indian politics during his period at [University 2]. During his period of residence in Australia he has not had any engagement with authorities of the Indian government (police, intelligence, security, customs or passports). When he applied to renew his Indian passport in 2015 he did not declare he had applied for a Protection Visa in Australia.
·He had been continuously resident in Australia since 2009, had not returned to India in that period, was an unlawful overstay in the period 2009 until 2015 at the expiry of a student visa and prior to lodging an Application for a Protection Visa.
·Asked to explain this lengthy period of unlawful overstay he was advised he thought then the situation in India was bad and it might improve. After 2014 he thought the new government attacked Sikhs for their political views. He acknowledged the Sikh population in his home state was the dominant ethnic group. During the period of his unlawful overstay he did not contact the Department or seek legal advice as to his continuing. residence in Australia. He advised he saw 3 or 4 MA’s to get advice as to how he might make his visa legal and remain in Australia. Each firm refused to act on his behalf. He eventually retained a legal firm.
·He advised he had raised his political claims as a Sikh with the legal firm Clothier Anderson (CA). During his interviews with the firm he was asked to provide a written statement as to fear of discrimination and harm because of his Sikh ethnicity if required to return to India. He provided such statement during the interview. He was not given a copy of this statement. He does not recall if CA wrote to him at that time with a copy of their submission to the Department before sending it to the Department. He does recall that the discrimination against Sikhs at that time was ‘not so harsh’. One week after the interview process with CA he again attended the office and signed some documents.
·Last week he rang the office of CA and requested they provide him with a copy of the hand-written document he provided to them during the interview process in 2015. The firm advised him it no longer had the files.
·Prior to the first hearing he did not make a written submission.
·His reasons for seeking a protection visa in Australia is that he used to be active on Facebook and other social media platforms and posted anti Indian government sentiment mostly targeted at Sikh youth in his home country. Those sentiments detailed anti Sikh activities by the Modi government in India with respect to discrimination, oppressive police conduct, detention of individuals, the sending of detained individuals to police stations and his perception of the denial of legal representation. He deleted all those posts in late 2022. He does not have copies of those posts. He no longer posts on social media.
·His engagement with the Sikh community in Melbourne is through the Sikh temple which he attends for spiritual reasons and also participates in pastoral care. He has not had any engagement with Indian government authorities in Australia. He has not been a member of any political party in Australia.
·If he returns to India he thinks the Indian government might have a blacklist of people. The Indian government night detain him or keep an eye on him. He believes they target radical Sikhs with false charges. He thinks the Modi government might not have liked his posts.
·He expressed his claim for a Protection Visa in the following terms: he believes the precedents of crackdowns on Sikh political activists in India in the past and in the current time will result in his detention or arrest if he returns to India because of his social media posts in Australia.
·He attended a rally concerning a referendum in his home country in Melbourne with a friend. This rally was attended by about 250 people. People took photographs at this rally. A friend advised him the following day there may have been Indian government spies in the crowd taking photographs.
Mr [A] gave evidence to the Tribunal as follows:
·He is a long standing friend of the applicant and provided a written statement on behalf of the applicant to the Tribunal.
·He is aged 36, married with a family, has resided in Australia since 2006 and both he and his wife are Australian citizens.
·He has returned to India on numerous occasion since 2006 and since 2010 every 3 years to see his parents. His parents live very close to the border of Punjab state amidst a large Sikh population. His parents visit Australia every 2 years and stay with his family whist in Australia.
·He has never had any concerns or problems with the Indian government authorities upon his various return trips to India. His parents on their many visits to Australia have not experienced any problems with the Indian government authorities.
·The applicant used to post on social media inclusive of Facebook. He is not aware of any recent posts.
At the conclusion of the second hearing the Tribunal invited the MA for the applicant to make oral submissions. The MA declined the opportunity. He requested a further adjournment to make written submissions. The Tribunal granted an adjournment. The Tribunal also extended the period to provide written submissions until 12 noon Monday 1 May 2023.
At 10.48am on Friday 21 April the Tribunal forwarded by email to the MA for the applicant copies of the hearing recordings of the hearings held on 30 March and 20 April 2023.
Following the conclusion of the second hearing on 20 April 2023 the applicant provided a further written submission[55] on 1 May summarised by the Tribunal as follows:
[55] Doc ID number 11009372
·History to date of hearings.
·Section 423A of the Migration Act.
oApplicant raised his claims (“additional claims”) in connection with his religion and political opinion during the first hearing.
oTribunal making reference to s 423A of the Act. Applicant evidence at second hearing he wrote out by hand a 5 page statement on his reasons for claiming protection and that he did this at the offices of Clothier Anderson. This statement addressed his religion as a Sikh and political opinions. This statement is not included in the Departmental file. A few days back (prior to the second hearing) Clothier Anderson were unable to provide a copy of this statement. In the Form 866 application (“Your reasons for claiming protection”) questions 90 to 97 all have a handwritten entry “Please see attached”. The application was sent by the applicant’s then migration agents, Clothier Anderson.
oThese facts compel the conclusion that the applicant’s then migration agents (Clothier Anderson) failed to include the attachment referred to in the section headed “Your reasons for claiming protection”. The Tribunal cannot be satisfied that the applicant does not have a reasonable explanation as to why what are described as “additional claims” were not raised, or the evidence was not presented, before the primary decision maker.
·The first hearing before the Tribunal.
oThe applicant acknowledged he was now claiming religious discrimination and had told his previous lawyers (Clothier Anderson) about these claims connected to his religion and political opinion. The comment in a letter from Clothier Anderson to the Department that the applicant “…does not have the strongest claims to meet the relevant criteria for a Protection visa…” is not a view that the applicant does not have a claim for a protection visa but rather to explain that in the event the application failed the applicant will nevertheless provide a pathway to Ministerial intervention, in Clothier Anderson’s view, “on the basis of unique and exceptional circumstances which engage the public interest”.
oThe submission from Clothier Anderson that from 24 March 2012 there is no longer any need to articulate a ‘Convention’ claim to lodge a valid application.
oIt is fair to conclude that Clothier Anderson was of the view the applicant’s amounted to a claim for protection, at the very least, under the complementary protection provision.
·The second hearing before the Tribunal.
oThe harm the applicant fears upon forced return to India falls within the scope of persecution and/or significant harm under the Migration Act. The applicant relies upon three headings of religion, political opinion and membership of a particular social group with provision of brief particulars, detail of persecutors (the current Modi government, its agents and supporters inclusive of the police other government authorities, the BJP, and other fundamentalist organisations like the Shiv Sena). The applicant relied upon witness evidence, news reports, recent Indian CIR, common facts about Sikhs inclusive of their participation at the highest levels within the Indian state.
·Relocation within India.
oIt is not possible for the applicant to avoid being targeted for his anti-Modi and pro-Khalistan views anywhere in India.
oThe applicant provided an extract from s 5J(3) of the Migration Act with particular reference to altering religious or political views in the context of modification of behaviour.
·DFAT CIR India.
oThe applicant provided extracts of paragraphs 3.68, 3.91, 3.83, 3.86, 3.87, 3.88, 3.89, 4.32 that address the DFAT assessment that Sikhs in India generally face a low level of official and societal discrimination and violence, the further DFAT assessment that people who publicly express views critical of the government face a moderate risk of official discrimination, an assessment the Indian government has sought to align Indian nationalism with Hindu nationalism, the activities of intelligence agencies, the (mis)-use of colonial era laws in individual cases (student Sharjeel Iman) and media reports that address sedition laws leading to the conclusion that “… the applicant’s claims that the situation in India for political dissidents against the Modi government has become much worse since the date of the DFAT Report (10 December 2020) is borne out by current news reports on internationally reputable news media.”
·Belief of applicant’s then solicitor as to the purpose of the first hearing.
oThe applicant advised the Tribunal in both hearings he believed the purpose of the first hearing was to “reinstatement of (his) application” and was advised of this by his then solicitor.
oSubmissions concerning s 426A[56] of the migration Act and failure of the Tribunal to provide a written statement concerning the application for review concluding with a request the Tribunal kindly correct any procedural irregularities concerning the prior non-appearance decision
[56] See paragraphs 14 to 24 above.
Evidence at third hearing
In evidence at the third hearing the applicant advised the Tribunal as follows:
·The applicant and his MA both advised the Tribunal they understood the purpose of the hearing.
·The applicant advised the Tribunal he could not recall giving evidence at the first hearing on 30 March 2023 to the effect that he had raised the issue of adherence to his Sikh faith with Clothier Anderson[57] at the time but decided not to pursue this matter. This was because he had a sore throat and a fever he thought was Covid[58] at the time of giving evidence as advised by his MA at the time. The Tribunal notes it had already determined there was insufficient evidence to make a finding[59] the applicant had contracted Covid on or around 30 March 2023 and hence whilst the applicant may have had some difficulty in giving evidence because of a sore throat and high temperature this particular difficult circumstance does not explain an alleged memory loss on 12 May 2023 in light of the fact the Tribunal had previously provided a copy of the relevant audio to the applicant.
[57] See paragraph 34 above.
[58] The Tribunal notes its lengthy discussion re Covid at paragraph 2 above and the failure of the applicant to provide sufficient evidence that he had contracted Covid at or around the time of the 1^st scheduled review hearing.
[59] See paragraph 2 above.
·As to the detail of providing a 5 page written statemen[60] to Clothier Anderson the applicant advised as follows:
[60] See paragraphs 53 (evidence at 2^nd hearing) and 57 (post 2^nd hearing written submission) above.
oHe provided a signed and written statement to Clothier Anderson in the first or second week of September 2015. He advised Clothier Anderson of the of the fact of his Sikh faith, he was politically active at home, he had raised issues on social media, the government might detain him, arrest him or keep an eye on him for doing anything.
oThe solicitor advised the firm would use it for him. After signing and providing the hand-written statement to the firm (it was late at night) he did not discuss the detail further with the firm. The firm submitted the Application for a Protection Visa to the Department.
oOn the Tuesday prior to the 2^nd hearing[61] at approximately 10.30am he rang the offices of Clothier Anderson. He spoke to the receptionist. He requested the firm provide him with a copy of his 5 page statement. Later that afternoon the firm advised him it could not locate the statement. He did not seek his request be referred to a more senior person in the firm.
[61] The second hearing was conducted on 20 April 2023
oHe confirmed he had deleted a set of anti-Indian government posts in late 2022. He confirmed he no longer posts on social media.
oOn Sunday 20 January 2023 he attended a voting place in federation square in Melbourne. The purpose of his attendance was to vote in a referendum concerning the creation of a separate state of Khalistan in India. He was in favour of this proposal. Over 250 people attended federation square and there was a long line of people waiting to vote. He does not hold any political or executive office in any pro-Khalistan separatist movements in Australia. He attended simply to vote. The referendum vote was organised by a pro-Khalistan group. He did not recognise any Indian government officials at the referendum. It was the practice of people to take phots and videos at these events.
oHe was only aware of the possibility of the presence of Indian government officials because his friend raised it with him the next day.
oDuring the voting process he saw some disputes between anti and pro Khalistan supporters. There were clashes between the two groups. This vote and the clashes received media and tv coverage in India. There were arrests. The pro-Khalistan activists in Australia are portrayed in India as being pro-terrorist.
oAustralia police attended the referendum in federation square. A number of people were arrested and taken away.
oHis father decided he should attend [University 1] in the years 2000 until 2004. This was because his brother already attended the university. The academic year goes from July until the following May with a 10 day break in December and a month long break between academic years.
oHe customarily returned to his home village in the break period between academic years. He usually travelled by train and the trip took about 40 hours. His father paid fees and expenses. He did not work. He lived on campus and in his final year lived in a rent room with friends.
oHe attended demonstrations if he thought there was an injustice to a minority. He was detained by police on two or three occasions. He advised he was detained warned and released. He was never charged with any offences arising out of these matters. The university did not take any action against him from these matters. On the three occasions he was detained it was because police had beaten some students, a Muslim woman was harassed in public and he was late coming out of a movie. He thought the police activity was an abuse of power.
oHe was aware[62] the Sikh population in Karnataka was minimal. He advised there was a Sikh holy town of Bidar with a worship place in the temple at Gurudhawi about [distance] from his [college].
oDuring his student years he travelled to other parts of India on a number of occasions including the next state and Delhi in the north of India.
oHe has not been the subject of police prosecution at any time in India or Australia.
oHe is of the view his publications on social media in the past will warrant police crackdown on him if he returns to India. He cited a case of another political activist who had been detained by police for a lengthy period of time because of his anti-Indian government social media posts. He thought he might publish again in the future.[63]
oBecause of his views on injustice and past actions of the Modi government in India he may be arrested or harmed if he returns to India. These injustices relate to the practice of his Sikh faith and associate political activities.
[62] See paragraph 53 and footnote 54 above.
[63] The applicant did not provide any detail as to how, when or why he might publish in the future or the detail of any such proposed future posts.

Towards the end of the hearing the Tribunal expressed concerns as to the veracity of the applicant’s evidence concerning the provision of a 5 page hand-written to Clothier Anderson.
The Tribunal provided[64] a copy of the Ethics Guidelines published by the Law Institute of Victoria relating to client documentation and solicitor documentation. The Tribunal read out the first two paragraphs under the heading ‘Document Retention & Destruction’ on page 2 of the document and provided a copy of the document to the applicant and his MA. That paragraph provides as follows:
·A solicitor is obliged to retain client documents in a secure and confidential manner.
·A solicitor or law practice “may destroy client documents after a period of 7 years has elapsed since the completion or termination of the engagement except where there are client instructions or legal obligations to the contrary”[65]
[64] File Ownership, retention & destruction guidelines.
[65] See Legal Protection Uniform Law Australian Solicitors Conduct Rules 2015 r14.2 as cited at footnote 11 of the Ethics Guidelines published by the Law Institute of Victoria.
At the conclusion of the hearing the Tribunal wrote to the applicant in the following terms requesting he provide two sets of documents by 12 noon 12 June 2023:
1.Letter[66] concerning a handwritten statement provided to law firm Clothier Anderson
·I am writing in relation to the application for review made by you in respect of a decision to refuse to grant a Protection visa.
·The Tribunal is concerned the applicant’s principal claims as to his Sikh faith and political activism is not substantiated by evidence such as was said to have been provided in a 5 page hand-written statement to the law firm of Clothier Anderson.
·The Tribunal notes the applicant advised the Tribunal that statement contained detail of his Sikh faith, political activism, and fear of persecution by the Indian government if he should return to that country.
·The Tribunal notes it provided the applicant with a copy of the Ethics Guidelines of the Law Institute of Victoria as those guidelines relate to ‘File ownership, retention & destruction guidelines” and made particular reference to the 7 year file retention rule as set out under the heading “Document Retention & Destruction” on page 2 of that document.
·The Tribunal notes the applicant advised the Tribunal as follows:
oHe does not have any debt to Clothier Anderson.
oClothier Anderson advised him it no longer had a copy of the relevant file and statement.
[66] Document ID number 11053007
2.Letter[67] concerning employment and salary detail
You are requested to provide the following information:
·Proof of employment by way of a letter from your employer confirming your title, period of employment as well as salary and superannuation details.
·In response on 7 June 2023 the applicant provided[68] a copy of a letter signed by a [name], Director, that summarised employment detail on and from October 2022 with the applicant’s current annual salary of $93,000 as a [occupation] at [Employer 2].
[67] Document ID number 11069419
[68] Document ID number 11144612
On 15 May 2023 the Tribunal provided to the applicant a copy of the audio tape from the hearing of 12 May 2023.
On 31 May 2023 the applicant provided a written a written response summarised by the Tribunal as follows:
·Outgoing letter[69] from the MA for the applicant to Clothier Anderson requesting “…you kindly provide me with a copy of the 5-page statement made by [the applicant]. I enclose an Authority signed and dated by my client authorizing and directing you to provide this statement. The AAT has asked that if you are unable to provide this statement, that you provide an explanation on your letter.”
·Copy of response from Clothier Anderson dated 30 May 2023 that set out the following:
o“We refer to your email sent to us on 15 May 2023 enclosing a copy of the AAT’s letter to your representative dated 15 May 2023.
oWe note that we have no record of you previously requesting a copy of your file held with this office. We now provide you with a google drive link to a full copy of all documents on the files held by our office -150399 (Protection (subclass 866) visa application – AAT review – s 417 request to the Minister and 150397 (DHA – BV C - permission to work application). We note that neither file contains a 5 page handwritten statement by you.”
·The applicant declined an invitation from the Tribunal to provide a link “…to a full copy of all documents on the files held by our office -150399 (Protection (subclass 866) visa application – AAT review – s 417 request to the Minister and 150397 (DHA – BV C - permission to work application).”
[69] Document ID number 11119361
Arising out of the invitation from the Tribunal as outlined in paragraph 63 above third dot point the applicant wrote to the Tribunal and advised “The evidence by my client that he gave the 5 page hand-written statement to Clothier Anderson and the fact that this document is referred to several times in the application for a protection visa submitted by Clothier Anderson is the only evidence that is relevant to Section 423A of the Migration Act. (Please refer to my written submissions dated 27 April 2023).”
The Tribunal Is not aware of any statutory provision or case law that suggests or directs that the application of s 423A of the Migration Act is limited to evidence of an applicant or his statement in the words “please see attached”[70] as set out in his Application for a Protection Visa[71].
[70] See paragraphs 90 to 97 of Form 866C Application for a Protection Visa and covering letter from Clothier Anderson pages 10 to 25 of Departmental file.
[71] See paragraphs 90 to 97 of Form 866C Application for a Protection Visa and covering letter from Clothier Anderson pages 10 to 25 of Departmental file.
The applicant provided submissions and extracts relating to Country Information concerning India.[72] The Tribunal provides the following extracts concerning Country Information (CI) about India.
[72] See paragraph 57 above.
COUNTRY INFORMATION REPORT INDIA
POLITICAL SYSTEM
2.52     India is a federal republic with 28 states and 8 union territories, controlled by the central government. It is a parliamentary democracy, which operates under its 1950 constitution. The federal parliament is a bicameral system with an upper house (the Rajya Sabha) and a lower house (the Lok Sabha).
RELIGION
3.20     The level of communal violence (between different religious communities) has ebbed and flowed since independence but remains an issue in India… Religious minorities are especially vulnerable to the threat of communal violence. Muslims, while less than 15 per cent of the population, have typically made up the majority of victims.
3.21     Article 15 of the constitution prohibits discrimination against any citizen on the grounds of religion. Article 25 guarantees the right to freely profess, practise and propagate religion, and Article 26 guarantees every religious denomination or any sect the freedom to manage its own religious affairs. National law provides minority community status to six religious groups: Muslims, Sikhs, Christians, Parsis, Jains and Buddhists. State governments can grant minority status to religious groups that are minorities in a particular region.
3.22     In 1992, the Government of India set up the National Commission for Minorities (NCM), under the National Commission for Minorites Act. The Act extends to the whole of India and has the powers of a civil court. Five religious communities were included under the Commission’s remit: Muslims, Christians, Sikhs, Buddhists and Zoroastrians (Parsis). Since 2014, the Jain community has also been included. State Minorities Commissions exist in Andhra Pradesh, Assam, Bihar, Chhattisgarh, Delhi, Jharkhand, Karnataka, Maharashtra, Madhya Pradesh, Manipur, Rajasthan, Tamil Nadu, Uttarakhand, Uttar Pradesh and West Bengal. The functions of these Commissions, like the NCM, are to safeguard and protect the interests of minorities provided in the constitution and laws enacted by Parliament and the State Legislatures. Aggrieved persons belonging to minority communities may approach the relevant State Minorities Commission for redressal of their grievances. They may also approach the NCM, after exhausting all other remedies available to them.
3.24     In 2006, the Ministry of Minority Affairs (MMA) was established. Its mandate is to formulate overall policy and planning, coordination, evaluation and review of the regulatory framework and development of programs for the benefit of minority communities. Like the NCM, minority communities under its remit are Muslim, Christian, Buddhist, Sikh, Parsis and Jain. The MMA implements various national schemes across educational and economic empowerment, infrastructure development, special needs and financial support to institutions.
SIKHS
3.62     India has a Sikh population of 20.8 million people (2011 census). The growth rate of Sikhism declined since the 2001 census. Sikhism is the dominant religion in the state of Punjab (approximately 16 million people) with significant populations in Haryana (1.2 million), Delhi NCR (570,581), Rajasthan (872,930), Uttar Pradesh (643,500) and Uttarakhand (295,530).
3.67     According to information cited by the Immigration and Refugee Board of Canada (IRB), since the late 1980s, Sikhs living outside Punjab mostly do so safely and integrate economically and socially into their communities. IRB notes while there can be localised discrimination, for example blocking entry to public areas or requiring the removal of articles of faith (turbans or kirpans) before sitting examination in educational programs, such issues are adequately addressed by local courts or police. Sikhs may face difficulties integrating in areas where a Sikh community does not already exist, and may face discriminatory treatment from law enforcement and government officials for wearing the kirpan.
3.68     DFAT assesses Sikhs in India generally face a low level of official and societal discrimination and violence.[73]
[73] In addition the Tribunal notes a newspaper report from ‘The Statesman’ dated 8 September 2022 in a dispute concerning the wearing of the Hijab the Supreme Court of India told counsel that “…practices of Sikhism were well ingrained in the culture of the country” see www. thestatesman.com>India
POLITICAL OPINION (ACTUAL OR IMPUTED)
3.80     India’s constitution provides for freedom of speech and expression, freedom of assembly, and the right to form associations (Articles 19-22). The Government of India can impose reasonable restrictions to these freedoms in the interests of sovereignty and integrity of India, national security and public order, and to maintain decency and morality. India has laws on sedition and criminal defamation, and laws regulating the use of the internet.
3.81     Democratic elections for the Lok Sabha, the lower house of parliament, have been held since 1951. The only exception to this was when the Indian Congress Party’s then-Prime Minister Indira Gandhi postponed elections during a period of emergency rule from 1975 to 1977. Notwithstanding the scale and complexity of India’s political landscape, and noting some exceptions, elections in India tend to be peaceful, broadly free and fair, reflect the will of the electorate, and result in regular transfers of power at central and state levels. Activists have occasionally called for communities in conflict-affected areas to boycott electoral processes, and low-level violence has sometimes occurred.
3.82     India has a diverse political landscape, which represents different ethnic, religious, secular and political interests. There are no constitutional, legal or other institutional restrictions preventing minorities from participating in politics. Political parties often court ethnic, religious and caste-based minorities for their ability to deliver ‘vote banks’.
ARBITRARY ARREST AND DETENTION
4.30     Article 21 of the constitution guarantees ‘no person shall be deprived of his life and personal liberty except according to procedure established by law’. Article 22 of the constitution guarantees the right of all arrested persons to be informed of the grounds of arrest as soon as possible. Section 50 of the CrPC provides a duty on the police officer arresting a person to inform them of the full particulars of the offence for which they are being arrested, or other grounds of arrest. Under Section 50A of the CrPC, every police officer or other person making an arrest must immediately inform the family, friends, or such other person that the arrested person may nominate, about the arrest. All detainees must be informed about their rights as soon as they are brought to the police station.
4.31     Article 22(2) of the constitution provides that every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of 24 hours and no such person shall be detained in custody beyond this period without the authority of a magistrate. This right is also recognised in Section 57 of the CrPC.
4.32     Article 22 of the constitution guarantees the right of every arrested person to consult or be defended by a legal practitioner of their choice. In order for this right to be available to all, the Supreme Court has held that the State shall provide free legal services to such accused persons from the time they are first presented before the magistrate. However, the obligation of the State to provide legal aid does not extend to the period before that, such as during police interrogations.
PREVENTIVE DETENTION
4.35     ‘Preventive detention’ arises in a situation when a person is detained and restricted from doing something that might lead to a deterioration of law and order, whereas an ‘arrest’ is done when a person is charged with a crime and, under Indian law, must be brought before a magistrate within 24 hours.
4.36     There are two separate pieces of legislation that deal with preventive detention: the Code of Criminal Procedure (1973) (CrPC) and the National Security Act (1980) (NSA). Both the CrPC and the NSA apply to all of India (including, since August 2019, to J&K – see Jammu and Kashmir). The CrPC is the main legislation on procedure for administration of substantive criminal law in India. The NSA deals with preventive detention in the contexts of national security, public order and essential services.
4.37     Section 151 of the CrPC provides that preventive detention is an action taken on grounds of suspicion that some wrong actions may be done by the person concerned. A police officer can ‘arrest’ an individual without orders from a magistrate and without any warrant if they have any information that such an individual can commit any offence. Article 22 (4) of the constitution provides that no law providing for preventive detention shall detain a person for a period longer than three months unless a bench of High Court judges or an Advisory Board (made up of retired judges) decides to extend the date. Article 22 (5) of the constitution states a detained individual should be made aware of the grounds on which they have been detained and be provided an opportunity to make representations against the case. Parliament may prescribe the circumstances under which a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board.
4.38     The NSA allows the central or state governments to detain suspects to prevent them from acting in a manner prejudicial to the security of the state or to the maintenance of public order or from the maintenance of supplies and services essential to the community. A person detained under the NSA can be held for up to 10 days without being told the charges against them. Preventive detention orders can be maintained for up to 12 months without a person being charged. In this period, a person can appeal their detention to a High Court advisory board, but they are not allowed a lawyer during the trial.
TREATMENT OF RETURNEES
5.39     DFAT is not aware of any evidence of mistreatment of returnees, including failed asylum seekers, by Indian authorities. India does not have a centralised registration system in place to enable the police to check the whereabouts of inhabitants in their own state, let alone in any of the other states or union territories. The Department of Home Affairs is required to notify Indian authorities prior to the arrival of escorted removals from Australia but does not track returnees after their arrival in India. Home Affairs does not routinely notify Indian authorities of unescorted returns and removals. UK Home Office reporting notes tracking and surveillance systems appear limited.
5.44     India has a border alert mechanism, known as a Look-Out Circular (LOC), that allows certain agencies to flag citizens and non-citizens for border intervention on entry to or exit from the country. Authorities can request LOCs in cases where a person is a suspect, accused or under investigation for cognisable offences under the Indian Penal Code or other penal laws. LOCs can be used to locate and prevent a person from exiting the country (via airports, ports or land border crossings), and allow for arrest in some cases (such as when a person is absconding). In other cases, immigration authorities may not prevent LOC subjects from travelling, but originating agencies will be informed about the person’s departure or arrival. Generally, LOCs are valid for one year from the date of issue. In some cases validity can be longer (such as LOCs issued at the request of courts or Interpol, those with a specified duration or those linked to impounding of passports).
New Protection Claim
Section 423A of the Migration Act addresses how the Tribunal is to deal with new claims or evidence. S.423A provides as follows:
MIGRATION ACT 1958 - SECT 423A
How Tribunal is to deal with new claims or evidence
(1) This section applies if, in relation to an application for review of a Part 7-reviewable decision (the primary decision), the applicant:
(a) raises a claim that was not raised before the primary decision was made; or
(b) presents evidence in the application that was not presented before the primary decision was made.
(2) In making a decision on the application, the Tribunal is to draw an inference unfavourable to the credibility of the claim or evidence if the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made.
The operations of this section were discussed in the recent case of EQU19 v MICMSMA [2022] FedCFamC2G 609 which dealt with new evidence provided by an applicant during a hearing and the Tribunal’s consideration of that new evidence without reference to s 423A of the Act. This decision illustrates a circumstance in which a failure to expressly address s 423A(2) did not amount to jurisdictional error. It is the first judicial authority stating that there is no formal method or process for obtaining an explanation for a claim that falls under s 423A.
As outlined above it appeared the applicant has made new claims with respect to his religion and political opinion as a Sikh that were not before the delegate. After inquiry the crucial piece of evidence underpinning the applicant inquiry as to why these claims were not raised before the delegate is unavailable.
Accordingly it is open for the Tribunal to consider the explanation for why the claims were not raised earlier and then either choose to accept the explanation (and perhaps just accept that the 5 page handwritten document went missing), or alternatively, rely on the outcome of the inquiry to his past solicitors confirming that no document was on file, to support a finding that the explanation is not reasonable. This will ultimately affect whether an adverse inference with respect to the credibility of the new claims has any affect. That is, if the Tribunal is satisfied that the explanation is reasonable, an unfavourable inference would not be drawn, but if the Tribunal is not satisfied it is reasonable, an unfavourable inference must be drawn.
Section 423A and reasonable explanation

Ordinarily s 423A provides that where a new claim is raised that was not originally raised before the delegate, the Tribunal is to draw an adverse inference with respect to the credibility of the claim if the Tribunal is not satisfied that there is no reasonable explanation for why the claim was made late: s 423A(2).
Here, it appears the applicant has raised new claims within the present review, that is that he will be persecuted on grounds of his religion as a Sikh and for his associated anti-government political opinion. The applicant only appeared to raise these claims before the most recent Tribunal at the hearings and through his representative’s written submissions. Given they would be considered late claims (not made before the delegate), if the Tribunal finds that the explanation for why they were not provided to the delegate is not reasonable, it would be open for it to draw an unfavourable inference with respect to the credibility of the claims.
The applicant’s explanation for why the claims were made late, was that he had originally intended to make these claims in his visa application before the delegate and that his solicitors, after interviewing him about them, had summarised these in a written 5-page document, however they were never made as this document was not submitted. The present Tribunal has since sought to obtain a copy of this 5-page document to verify the credibility of this explanation, however, the document has not been forthcoming, with the solicitors who acted for the applicant at the time of the visa application, recently confirming that they do not have a copy of it on their records.
Hence the question here for the Tribunal to consider, that is, given the document isn’t able to be obtained, does it mean the applicant’s explanation is not credible (that perhaps because the document cannot be obtained, it means it never existed?).
·If the Tribunal considered that was the case, accordingly the Tribunal could find the explanation not reasonable, and would need to draw an adverse inference with respect to credibility of the new claims in accordance with s 423A(1).
·In the alternative, it is open to the Tribunal to consider that perhaps the applicant is telling the truth with respect to his reason (and perhaps the solicitors lost the document), and if finding that to be the case, it would be then open to the Tribunal to consider whether the explanation proffered for why the claims were made late is reasonable (that is by inference, they were negligently not put forward by his representation at the time). This would avoid any adverse inference of credibility being made against the late claims.
·Ultimately this is a question for the Tribunal to consider and make findings on.
Claims regarding religion
With respect to the applicant’s claim of fear harm as a refugee on the basis of his religion as the applicant identifies as a Sikh the Tribunal accepts the applicant is an observant Sikh. Hence this claim ordinarily arises on the facts. As such, any application of s 423A to draw an adverse inference as to credibility would have little relevance. This is because even if the Tribunal were to draw an adverse inference to the credibility of the claim, it does not change the fact that the applicant is still a Sikh and therefore may still be subject to persecution for his religion, if that is indeed what the country information suggests. Accordingly, the Tribunal concludes that the claim arose before the delegate.
Claim regarding political opinion
The applicant’s other claim is that he holds an anti-government opinion, which again is tied into his identity as a Sikh. This claim does not automatically arise on the facts, given it is not clear that all Sikhs would hold the same political opinion and or/fear persecution for that reason.
The applicant’s evidence to the Tribunal was that Sikhs hold varying political opinions. These political opinions extend to matters of consequence including the secession of a state or states from India. These political opinions are on occasion accompanied by violence to such an extent that the police are called.[74]
[74] See paragraph 58 above and relevant applicant evidence as to a disturbance in federation square, Melbourne concerning anti and pro Khalistan supporters on or around 20 January 2023
The applicant has raised a claim that was not raised before the primary decision was made. In response to a question from the Tribunal as to why this claim had not been raised prior to the delegate making the primary decision the applicant stated he had advised his then solicitors, they had said it was not worthwhile to pursue this claim and accordingly he had instructed his then solicitors not to pursue this claim. The Tribunal pointed out to the applicant the fact his then legal representatives had provided[75] lengthy and detailed submissions to the Department pursuant to his instructions. The applicant advised the Tribunal he could no longer recall and was unsure. He also advised the Tribunal he did not recall and was not sure his then solicitors had provided him with copies of their correspondence on his behalf to the Department.
[75] See footnote 18
In later evidence the applicant made specific claims he had provided a detailed 5 page written statement to his then solicitors. This statement, in part addressed his political claims. Written submissions to the Tribunal confirm the 5 page statement is not available on the relevant files and that Clothier Anderson advised “…neither file contains a 5 page handwritten statement by you.”[76]
[76] See paragraph 68 above.
In addition the Tribunal notes that in lodging his Application for a Protection Visa in 2015 Clothier Anderson stated on behalf of the applicant “…It is acknowledged that my client does not have the strongest claims to meet the relevant criteria for a Protection (subclass 866].”[77] The applicant’s MA provided written submissions[78] on this point.
[77] See paragraph 46 above and footnote 44.
[78] See paragraphs 57 and 64 above.
It is of course possible the applicant provided a 5 page written statement to his then solicitors that addressed his fears of persecution for reason of religion and political opinion. It is of course possible that his then solicitors failed to attach this crucial document to the relevant file. It is of course possible his then solicitors ignored this letter or failed to comprehend its significance and hence volunteered the statement “…my client does not have the strongest claims to meet the relevant criteria for a Protection (subclass 866].” [79]
[79] See paragraph 80 above.
This 5 page written statement can only be described as a most crucial document. It provides a basis for a claim for protection as it squarely addressed s 5J(1)(a) reasons for persecution. Considering the totality of the evidence on this point inclusive of the relevant written submissions the Tribunal is not persuaded the applicant ever provided the 5 page handwritten statement to his then solicitors. The Tribunal is of the view the applicant has manufactured this reason well after the event.
In the language of s 423A(1)a) the Tribunal is of the view this claim “raises a claim that was not raised before the primary decision was made.” Accordingly the Tribunal draws an inference unfavourable to the credibility of the claim as the Tribunal “…is satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made.”
Claims for Protection: Refugee and Complementary Protection.
The applicant has claims for protection under 3 separate headings of religion, political opinion and membership of a particular social group. The applicant prosecutes these claims under both the refugee and complementary protection provisions of the Migration Act.
The Tribunal now turns to addresses these claims under both refugee and complementary protection. The Tribunal will make findings under both s 36(2)(a) and s 36(2)(aa) of the Migration Act.
In his evidence and written submissions the applicant was at pains to explain his political views were founded in his religious identity as a Sikh. He felt driven to address unfair treatment, political oppression, unacceptable police behaviour, alleged government discrimination, injustice to individuals, injustices to minorities, racist government policies, government or state agency surveillance of individuals and spying by government or state agencies on persons of minority faith.
Most of the descriptors outlined in paragraph 86 above are ordinarily associated with pure political activities or responses to political actions.
In this review application the Tribunal is unable to draw a distinction between the applicant’s religious faith and his political fears as the latter are directly related to his own actions that are in turn critically woven into his religious practices and beliefs.
At various times in the hearings (and as supplemented by written submissions) the applicant referenced his own upbringing, his education in a state far from home, his minimal political involvement whilst at university, his limited police engagement whilst at university being related to non-Sikh matters[80], his regular travel as a boy and young man throughout India without interruption, hindrance or any state sanctioned interference, his lack of political engagement in India, his purpose in coming to Australia to further his education on account of the fact he had been unable to gain employment in India, his life study and work in Australia, his lack of political engagement in Australia, his sometime uploading of social media posts in Australia that were driven by antigovernment sentiments, the later deletion of those posts and lack of retention of same, his fear these temporary posts were observed by Indian government agencies and would be the basis of persecution if he was removed home and his fear the current government was trenchantly anti Sikh and could, would and did use the many arms of government to hurt, harm and discriminate against persons of the Sikh faith.
[80] See paragraph 58 above and reasons for police engagement.
Apart from irregularities arising from his unlawful overstay in Australia for a period of approximately 6 years the applicant has led an almost blameless life. It is a life almost devoid of political engagement, political activity in India or political activity in Australia. He has studied, worked, travelled throughout India on a regular basis, practised his religion for a lengthy period in a state with only a bare Sikh presence and practised his religion in Australia. His religious life and experiences are notable for one thing: he has not engaged the attention of police or other government agencies on any occasion at all. He freely left his home state to attend university far from home. He attended university for 4 years. In that time he participated in some demonstrations that were supportive of the rights of non-Sikh persons or non-Sikh religious activities. His engagement with the police whilst at university was minimal. He was not arrested and does not have a criminal record in India or Australia. The minimal evidence before the Tribunal suggest his religious practice has not caused any attention of Indian government security agencies.
The Tribunal notes the applicant’s friend Mr [A] gave evidence to the Tribunal that he regularly returns to an adjoining state to that of the applicant’s birth and does so without interruption, hindrance or inconvenience related to his Sikh faith. The Tribunal notes further Mr [A] attended the referendum vote in January 2023 with the applicant, suggested post the referendum voting date there may have been Indian government spies in attendance and did not indicate any fear arising from his attendance when he might return to India in the future.
The applicant’s political activities in Australia seem to comprehend two separate pursuits. The temporary publication of some anti government political posts on social media which were deleted and a record of same is not available and voting in a referendum in January 2023 in Melbourne which occasioned some violence, warranted the calling of the police and was the subject of media attention in India.
The Tribunal has reviewed country information as it relates to India. Relevant extracts are referenced and outlined above.
The Tribunal gives significant weight to the following findings from the DFAT CI Report on India:
·    DFAT assesses Sikhs in India generally face a low level of official and societal discrimination and violence.
·    India has a diverse political landscape, which represents different ethnic, religious, secular and political interests. There are no constitutional, legal or other institutional restrictions preventing minorities from participating in politics. Political parties often court ethnic, religious and caste-based minorities for their ability to deliver ‘vote banks’.
·    Article 22 of the constitution guarantees the right of every arrested person to consult or be defended by a legal practitioner of their choice. In order for this right to be available to all, the Supreme Court has held that the State shall provide free legal services to such accused persons from the time they are first presented before the magistrate. However, the obligation of the State to provide legal aid does not extend to the period before that, such as during police interrogations.
·    The NSA allows the central or state governments to detain suspects to prevent them from acting in a manner prejudicial to the security of the state or to the maintenance of public order or from the maintenance of supplies and services essential to the community. A person detained under the NSA can be held for up to 10 days without being told the charges against them. Preventive detention orders can be maintained for up to 12 months without a person being charged. In this period, a person can appeal their detention to a High Court advisory board, but they are not allowed a lawyer during the trial.
·    DFAT is not aware of any evidence of mistreatment of returnees, including failed asylum seekers, by Indian authorities. India does not have a centralised registration system in place to enable the police to check the whereabouts of inhabitants in their own state, let alone in any of the other states or union territories.
The Tribunal notes the applicant has led a relatively blameless life on two continents. There is no evidence the practice of his religious faith as a Sikh has warranted the attention of Indian government authorities. The applicant’s political activities to the extent they reflect the dictates of his conscience as informed by his religious faith have been minimal. Certainly there is no evidence these activities have ever warranted the attention of the Indian government in the past.
The applicant gave evidence he attended a referendum to vote in January 2023 along with approximately 250 other people. There was some violence and apparently the referendum events as to pro and anti-Khalistan supporters was the subject of media attention in India. The applicant did not protest. He was not arrested. He was not detained. He was simply a man in a queue waiting to vote with hundreds of other persons. There is little evidence that suggests this type of limited activity might cause the attention of Indian government authorities.
The applicant is not a religious activist. The applicant is not a political activist. The applicant is not a political dissident. The applicant is not a religious dissident. His religious practice and associated activities such as pastoral care are faultless. He may have posted for some time some antigovernment sentiment. His evidence as to the content of these posts was general. It lacked specifics. It lacked detail. The applicant was unable to draw a causative link between the content of these posts and possible harsh Indian government activity against his person in the future. He was unwilling or unable to provide copies of same to the Tribunal. Hence the Tribunal is unable to assess the utility of the posts at all.
The applicant did make reference to strong government activity in the past and more recently against individuals and those who engaged in anti-Indian government pursuits. The applicant does not fall within these various categories of dissenters. He has not engaged in anti-Indian government pursuits. Without some examination of the now deleted posts the Tribunal is unable to conclude their content was so bad, extreme or offensive as to draw the ire of the Indian government or its agencies.
The Tribunal is unable to conclude the religious or political activities of the applicant during his life in India and Australia have been anything but those of an educated, informed, hardworking and law abiding person who has eschewed any involvement in significant antigovernment activities of any kind.

100. There is little information before the Tribunal to indicate the applicant’s fear of harm is for reasons of race, nationality, political opinion religion or membership of a particular social group.
Conclusion
101. The Tribunal finds that the applicant does not have a well-founded fear of persecution and his claims do not have a credible basis.
102. The Tribunal finds there is little chance that he will be harmed for any of the reasons he has claimed either on an individual basis or in aggregation. The Tribunal does not accept that he would be significantly harmed on the basis of things he has claimed. The Tribunal does not accept there is a real chance that if the applicant is returned to India he would be persecuted for any of the reasons as claimed. The Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk the applicant will suffer significant harm. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(a). As outlined above having concluded that the applicant does not meet the refugee criteria, the Tribunal has considered the alternative complementary protection criteria. The Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(aa).
103. For the reasons given above the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations. Therefore the applicant does not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that he is also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa.
DECISION
104. The Tribunal affirms the decision not to grant the applicant a protection visa.
Mark Bishop
Senior Member
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

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

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

translation from a NAATI accredited translator.” The Tribunal notes further the newly appointed MA for the applicant in his covering email concerning the two posts provided an explanation as to farmer agitation and minimum support price and stated “This post is in Hindi. I am translating this post…” The Tribunal notes there is no evidence that the newly appointed MA for the applicant is a NAATI accredited translator.