1828862 (Refugee)

1828862 (Refugee) [2021] AATA 4931 (14 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1828862
COUNTRY OF REFERENCE:                   India
MEMBER:Rachel Da Costa
DATE:14 October 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 14 October 2021 at 10:50am
CATCHWORDS
REFUGEE – protection visa – India – religion – Sikh – Dera Sacha Sauda (DSS) – political opinion – supporter of Dera Sacha Sauda – harassment, threats and attack by members of ruling party, with inaction or collusion by police – improved situation and no current fear of persecution – physical health and current treatment in Australia – availability of treatment in home country – request for referral for ministerial consideration not granted – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1), 36(2)(a), (aa), 65, 417
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 September 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of India, applied for the visa on 10 January 2018. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
CLAIMS AND EVIDENCE
Background
In his application for a protection visa the applicant provided the following information. He was born in Punjab state in India on [date]. He is a citizen of India and does not have the right to reside in any other country. He speaks, reads and writes Punjabi. His religion is Sikh. His father is deceased and his mother, brothers, wife and [children] all live in the same village in India. He completed primary school and his occupation is [deleted]. He arrived in Australia [in] March 2016 as the holder of a Visitor visa using his passport issued by the Republic of India [in] 2015.
Evidence before the Department
Protection visa application
The applicant makes the following claims in his protection visa application form:
·     He was born and brought up in a Sikh family in Punjab state.
·     His parents are followers of Dera Sacha Sauda (DSS) with its main centre in Sirsa of Haryana state. They frequently visited the organisation to participate in its activities.
·     Trouble started in 2014 when the DSS refused to support the Bhartia Janta Party (BJP) in the general elections. The BJP started targeting those persons after winning elections and started harassing youth followers of DSS. The police started working on the instructions of high political persons and started involving innocent persons in false cases.
·     Still they kept on following their religious sect regularly as before. His parents were asked to stop following DSS but they continued. They started receiving continuous threats to their lives and property.
·     The BJP won elections and started working more aggressively against the Dera Chief and its followers.
·     On 25 December 2015 at about 9.30pm he was standing outside his house. Two young people wearing hoodies approached him on a motorbike. They confirmed his name with him and hit him with a blunt weapon. He fell on the ground and they hit him with kicks and blows. They asked him to call Dera Sacha for help. He ran away to try to save his life. They tried to chase him and then slipped away.
·     He reported this to the police but they took no action. The local administration and police refused to listen to the complaint as they cannot go against the ruling political party.
·     He received telephone calls from unknown people saying this was just a trailer and they won’t leave him alone next time.
·     His parents got stressed and worried and they became fearful. He had no other option except to move out from India to save his life. On the advice of elderly members of his family he got a visitor visa to depart India to save his life in Australia.
·     The police falsely brought a criminal case against the Dera Chief and he was imprisoned. Violence erupted on 27 August 2017. Police and local authorities got more annoyed and started arresting followers of DSS.
·     His parents were receiving threats but they have no substitute. They are passing from stress and depressing but can’t move due to the financial restraints. They asked him not to enter any part of India due to prevailing severe threats to our lives with the aggressive attitude of the BJP as the ruling party of India.
·     Political people are misusing their position and harass innocent citizens. There is a climate of fear as the police authorities torture the people instead of protecting them. The safely of youth has become a big issue in India during BJP rule.
·     He has constant fear of significant harm, wrongful confinement or even killing on his return to India. His parents have expressed their helplessness to protect him.
·     He has constant fear of significant harm on return to India, even if he moves to any part of India due to advancement of technology. He has financial restraints due to a lack of savings or funds to resettle at a new place.
The interview
On 30 August 2018, the applicant attended an interview with the Department to discuss his protection visa application. In that interview, the application reiterated his claims and provided additional information and made new claims as follows:
·     His family’s home was raided 2 or 3 times in 2006 but he managed to escape arrest;
·     In the 3 months between the attack in 2015 and when he came to Australia he spent time visiting relatives and hiding at his parents-in-law’s place;
·     The police will stop him and detain him at the airport or in his village if he returns to India because they know he is a permanent follower of DSS;
·     The BJP are still targeting followers of the DSS;
·     In Australia he lives with some relatives in [City 1] who support him. They do not know he believes in Dera. He practises by doing some words or reciting some verses at home.
He also provided a print-out of a newspaper article dated 25 August 2017 from The Indian Express relating to violence that erupted in Panchkula after the rape conviction of Gurmeet Ram Rahim Singh who is the leader of DSS.
The delegate’s decision
On 14 September 2018, a delegate of the Minister refused the applicant’s protection visa application. The delegate accepted the applicant was a general follower or supporter of DSS but not a high-profile member. The delegate also accepted as plausible that the applicant was a Sikh and also a follower of DSS and had experienced some verbal confrontations as a result. The delegate did not accept the applicant’s claim that the DSS refused to support the BJP in the 2014 general elections and that DSS followers were targeted and harassed as a result of this, as these claims were inconsistent with country information. The delegate accepted the attack in 2015 on the applicant took place by unknown perpetrators but was not satisfied that it was due to his following of the DSS. The delegate was not satisfied that the applicant would face a real chance of harm on the basis of his religion as a Sikh and supporting the DSS. The delegate found that the applicant is not a person in respect of whom Australia has protection obligations.
Evidence before the Tribunal
The review application
On 10 January 2018, the applicant lodged an application for review of the delegate’s decision with the Tribunal. The applicant provided a copy of the delegate’s decision to the Tribunal.
The hearing
The Tribunal initially exercised its discretion to hold the hearing by video using the MS Teams platform with the agreement of the applicant. The hearing was held during the COVID-19 pandemic and the applicant lives in regional New South Wales.
On 31 July 2021, the applicant’s lawyer provided a written submission to the Tribunal reiterating the applicant’s claims, referring to country information about DSS supporters and Sikhs contained in the DFAT Country Information Report India 2015, making submissions in support of the validity of the applicant’s protection visa application in response to the delegate’s findings, and submitting that the application should be remitted to the Minister as all criteria for the protection visa had been met by the applicant.
On 4 August 2021, during a technology check conducted by the Tribunal, the applicant was unable to get MS Teams to function on his device. As a result, the applicant and his representative requested that the hearing be conducted via telephone. The Tribunal considered the applicant’s request and determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.
The applicant appeared before the Tribunal on 5 August 2021 and 6 October 2021 via telephone to give evidence and present arguments. The Tribunal hearings were conducted with the assistance of an interpreter in the Punjabi and English languages. The applicant was represented in relation to the hearings by his lawyer who also attended the hearings. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
On 13 August 2021, following the first hearing, the applicant’s representative provided written submissions and supporting documents to the Tribunal relating to the applicant’s claimed medical condition. Where relevant, these submissions and documents are referred to below.
Nationality
The applicant claims to be a citizen of India and provided to the Department a copy of his Indian passport issued [in] 2015. The delegate was satisfied that the applicant was using his own identity and documents. In the absence of any evidence to the contrary, the Tribunal is satisfied that the applicant is a citizen of India. The Tribunal finds India is his receiving country for the purpose of assessing his claims for protection.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
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.
Analysis, reasons and findings
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed, albeit for different reasons from those found by the delegate, as explained below.
The applicant gave evidence to the Tribunal that he had assistance filling out his protection visa application form from his representative at the time. He confirmed that the information in the form and his claims was true because he gave the information to his representative who inserted it into the form.
During the first hearing, the Tribunal discussed with the applicant his family, education, employment, where he lived in India and Australia, his involvement with DSS in India and Australia, problems he had in India and why he fears returning to India.
The applicant gave evidence that his extended family, including his mother and brothers, live in houses next to one another in [a village] in Punjab state. The applicant has a wife and [children]. He and his brothers own some land together in the village and are farmers, except for his oldest brother who [works for Employer 1]. The applicant’s father, who died some years ago, was also [with Employer 1]. The applicant’s mother receives an [Employer 1] pension and uses that to pay the school fees of the applicant’s children (her grandchildren). The applicant is the only family member who is outside India. The Tribunal accepts this evidence.
The applicant gave evidence about his family’s involvement with DSS. He explained that his father started following DSS after he retired from [Employer 1] and after that the family used to go a few times a year to the main DSS ashram in Sirsa and participate in activities such as serving food to people there and doing volunteer work in the garden of the ashram. The applicant also gave evidence that he used to make announcements on stage in the ashram to the people there about Guru Ji’s[1] timetable. The applicant gave evidence that his family was only involved in DSS activities at the ashram and they were not involved in DSS activities in their village. He gave evidence that people in his village would know they were DSS supporters because they wore white clothes on the journey to and from the ashram. The applicant gave evidence that he continues to follow DSS in Australia privately by listening to speeches on YouTube and doing the prayers. The Tribunal accepts that the applicant and his family are followers of DSS in India and that he was involved in DSS activities in the way he described. The Tribunal accepts that the applicant continues to follow DSS in Australia in the way he described.
[1] Guru Ji is one of the names used for Gurmeet Ram Rahim Singh who is the leader of Dera Sacha Sauda.[1] Who is Gurmeet Ram Rahim Singh? | India | Al Jazeera
The applicant gave evidence that he and his family had experienced harassment and threats from people in their village and also from the police on the basis of their DSS membership. He gave evidence that one Christmas night, although he can’t remember when, some people attacked them and they ran and hid. He gave evidence that he fears being killed if he returns to India and he fears the people in his village, Sikhs and the police because as a DSS follower he is a target for them. He also gave evidence that the Bhartia Janata Party (BJP) government targeted DSS followers and started arresting people after the DSS refused to support the BJP in 2014. The Tribunal put to the applicant that this was not consistent with the country information which showed the DSS supported the BJP in 2014.[2] The applicant said they started arresting people and he doesn’t know what happened.
[2] [2] Haryana Assembly polls: Neutralising the clout of Dera Sacha Sauda - The Hindu; Who is Gurmeet Ram Rahim Singh? | India | Al Jazeera; Deras and evangelicals - Frontline (thehindu.com)
A considerable way through the first hearing the Tribunal asked the applicant what else he wanted to tell it about what happened to him in India and the applicant responded that he didn’t want to tell the Tribunal anything else. He said his relatives had told him the circumstances in India were much better. The Tribunal put to the applicant that in that case, he could return to India. The applicant responded that he has [Medical Condition 1] which he needs to have treated in Australia and once his treatment is complete he can return to India. The Tribunal clarified with the applicant several times that he was saying he no longer fears persecution as a Sikh who is also a follower of DSS if he returns to India. The applicant confirmed that this is correct. He said he does not have any fear about returning to India now. He just wants to remain in Australia to receive medical treatment for his [Medical Condition 1].
The Tribunal questioned the applicant about his claimed medical condition. He said he has had the condition for about one-and-a-half to two years. He initially thought it was an allergy and got pharmacy treatment. That did not work so he went to see a General Practitioner in [City 1], which is where he lives, who gave him medicine. That was also unsuccessful. The General Practitioner referred him to a specialist in Sydney who diagnosed him with [Medical Condition 1]. He started seeing the specialist about one year ago and sees him every two or three months. It is expensive for him. He takes tablets and uses ointment and it seems to be working.
The Tribunal asked the applicant why he couldn’t continue with his treatment if he returned to India now. The applicant responded that he had asked his brother (who also suffers from [Medical Condition 1]) to try to find the medicine he is using back in India and he couldn’t find it. The Tribunal put to the applicant that India has a reasonable healthcare system and it may be that the medicine is available despite the fact that his brother had not been able to find it. The applicant responded he had sent pictures of the medicine to his brother but he had not even found it in Jalandhar.[3] The Tribunal asked the applicant whether he had any other problems or conditions. He responded that he has high blood pressure and has seen his General Practitioner about it. He said it is under control and did not mention it again.
[3] According to Google Maps, Jalandhar is a city in Punjab which is around [number] km from the applicant’s village and has an urban population of around 1 million people.

The Tribunal asked the applicant what he thinks might happen to him if he returns to India in light of his medical condition. The applicant responded [with details about the symptoms of his condition]. Once his treatment is finished he will go back and the circumstances in India will get even better.
The Tribunal noted that the applicant had put forward a very different case from the case contained in his protection visa application about why he could not return to India. The Tribunal invited the applicant to provide submissions and any evidence in support of his new claims for the Tribunal to consider.
On 13 August 2021, the applicant provided written submissions in support of his claim and various documents ranging over the period August 2019 to July 2021. These include a copy of a medical referral letter dated 29 August 2019 from his General Practitioner to a [Medical Specialist 1] in respect of the applicant’s [Medical Condition 1], an undated medical certificate signed by the General Practitioner confirming the applicant’s condition, numerous prescriptions in the applicant’s name for medicine prescribed by the [Medical Specialist 1], the results of a blood test and several paid invoices from the [Medical Specialist 1]. The Tribunal accepts these documents are genuine. The Tribunal accepts that the applicant suffers from [Medical Condition 1] and that he is under the care of his General Practitioner and a [Medical Specialist 1].
The applicant’s written submissions state that they are made in support of ‘a claim for a grant of his protection visa pending conclusion of his medical treatment.’ They refer to the applicant’s statement at the hearing on 5 August 2021 that although the applicant had applied for a protection visa he would voluntarily leave Australia on completion of his medical treatment. The submissions then go on to say ‘Relevant law in support of the applicant’s request to remain is [sic] Australia on medical grounds. For all intended purposes clause 602 of the Regulation is referred to with respect to medical treatment requirements in Australia.’ The submissions then to refer to the criteria for a subclass 602 Medical Treatment visa, the applicant’s current visa status and say ‘the applicant further seeks a medical treatment visa solely to allow him to have guaranteed access to the medical support that he require and allow for full recovery prior to his departure from Australia.’ The submissions go on to make arguments in support of the applicant meeting the criteria for a Medical Treatment visa. The submissions conclude by submitting that the Tribunal recommend to the Minister ‘that an exemption be granted to the applicant to remain in Australia for a specific period of time to enable him to finalise his medical treatment and voluntarily depart from Australia.’
At the hearing on 6 October 2021, the Tribunal discussed with the applicant his access to medicine and medical treatment in India. The Tribunal put to the applicant that simple research on the internet shows that the same medication for which he provided copies of his prescriptions in Australia is available in India, including for order online. The applicant responded that his brother had looked everywhere and asked doctors and pharmacies and they told him the medicine prescribed for the applicant is not available and they could give his brother something else instead. The Tribunal put to the applicant that it might not accept his evidence about the medicine being unavailable because a simple internet search shows that it is available.
The Tribunal also put to the applicant that a simple internet search shows that there are many [Medical Specialists 1] and [related] clinics in the larger cities close to his village in India and so he could access a specialist doctor in India for his medical treatment. The applicant responded that if the treatment is being done but it does not improve his condition then what is the point. The Tribunal put to the applicant that if he can access his medicine in India and access medical treatment then it should not be a problem for him to return to India and continue his treatment. The applicant responded that if his brother’s treatment was better he would go. He repeated that his brother cannot find the medicine in India. Later, he said that he wants to get his treatment in Australia. He got this problem after he arrived in Australia. He has lost his trust in the doctors in India because his brother is not getting proper treatment from doctors there and so how can he? He is getting good treatment here and then he will go back to India when he is better.
The Tribunal does not accept the applicant’s responses. As discussed with the applicant, India is known to have a large pharmaceutical manufacturing industry.[4] A simple internet search shows that the same medicine the applicant has been prescribed in Australia is available in India.[5] The Tribunal finds that this medicine is available in India. The Tribunal finds it follows that medical practitioners in India, including [Medical Specialists 1], would have access to those medicines to prescribe to their patients as appropriate. The Tribunal considers the applicant’s evidence that his brother has looked everywhere for the medicine, has not been able to find it and has been told it is not available, to be implausible and it does not accept this evidence. The Tribunal also considers the applicant’s evidence on this matter to be self-serving in the sense that if the applicant conceded that his medicine were available in India, his claimed reason for needing to remain in Australia to continue his medical treatment would no longer apply. The applicant agreed that he would see a doctor or [Medical Specialist 1] in India if his brother’s treatment was better, because he considers that if his brother can get effective treatment then so can he, and in the applicant’s view this turns on the availability of his medicine. Accordingly, the Tribunal finds that the applicant would seek medical treatment in India for his condition if the medicine he is taking in Australia were available, which the Tribunal has found is the case.
[4] Pharma industry in India: Invest in Indian Pharma Sector (investindia.gov.in); Pharma Industry in India: Pharma Sector Overview, Market Size, Analysis...| IBEF
[5] [Deleted]
In light of the applicant’s submissions and his evidence, the situation appears to be that the applicant still wishes to obtain a protection visa, not on the basis of his original claims but on the basis that he needs to stay in Australia to receive medical treatment and once that treatment is completed he will voluntarily depart Australia.
As discussed above, the issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations on the basis of him meeting the refugee criterion or the complementary protection criterion. Despite the applicant’s written submissions, the Tribunal does not have jurisdiction in this case to consider an application by the applicant for a Medical Treatment visa, nor to grant such a visa. If the applicant wishes to apply for a Medical Treatment visa then he should do so through the appropriate process.
The applicant’s representative reiterated this submission seeking referral to the Minister at the hearing on 6 October 2021. The Tribunal notes the applicant’s request that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.417 of the Act which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. The applicant requests that an exemption be made to enable him to remain in Australia for a specific period of time to enable him to finalise his medical treatment, after which time he will voluntarily depart Australia. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in departmental policy ‘Minister’s guidelines on ministerial powers (s351, s417, and s501J)’ but has decided not to refer the matter. The Tribunal notes that the applicant can still make a request directly to the Minister.
Does the applicant meet the refugee criterion?
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.
Based on the applicant’s evidence, the Tribunal is satisfied that the applicant no longer fears persecution if he returns to India in the foreseeable future on the basis being a Sikh and a follower of the DSS.
It remains for the Tribunal to consider whether the applicant is a person in respect of whom Australia has protection obligations on the basis of his medical condition. In response to the Tribunal’s questions about what might happen to him if he returned to India and could not continue with his current treatment, the applicant responded [with details of the symptoms of his condition]. Once his treatment is finished he can go back to India.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.[6]
[6] Chan Yee Kin v MIEA (1989) 169 CLR 379
The applicant has not claimed that he fears being persecuted on the basis of his medical condition if he returns to India, or for any other reason. The Tribunal accepts this. As discussed in paragraph 36 above, the Tribunal has found that the same medicine prescribed for the applicant in Australia is available in India and that medical practitioners in India, including [Medical Specialists 1], would have access to those medicines to prescribe to patients as appropriate. The Tribunal has also found that the applicant would have access to medical treatment in India, including from a [Medical Specialist 1], and that he would seek medical treatment if his medicine were available in India, which the Tribunal has found is the case. On this basis, the Tribunal finds that the applicant would have access to adequate medical treatment for his medical condition if he returned to India in the foreseeable future. Accordingly, the Tribunal finds that the applicant does not face a real chance of serious harm on the basis of his medical condition if he returned to India in the foreseeable future.
Taking into account the findings set out above and having considered the claims singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicant returns to India now or in the foreseeable future that he faces a real chance of serious harm for any of the reasons set out in s 5J(1)(a) of the Act.
Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the Act. As the Tribunal is not satisfied the applicant has a well-founded fear of persecution, it is not satisfied that the applicant meets the definition of refugee in s 5H(1). As the applicant does not meet the definition in s 5H(1), the Tribunal is not satisfied he is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Does the applicant meet the complementary protection criterion?
As the Tribunal has found that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, it has considered whether the applicant meets the criterion for the grant of a protection visa under the complementary protection criterion in s 36(2)(aa).
As set out above, the complementary protection criterion are met if 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 an applicant will suffer significant harm. ‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
As discussed above, the Tribunal accepts that the applicant is a Sikh who is also a follower of DSS. The applicant gave evidence that if he returns to India he will keep following DSS by visiting the ashram and doing the volunteer work as he did before. The Tribunal accepts this evidence. Recent country information indicates that since the leader of DSS was jailed in 2017, the impact of the sect has waned considerably and ‘DFAT is unaware of any major incidents of violence targeted specifically towards members of the Dera Sacha Sauda sect in India.’[7] Country information also indicates that the leader of DSS is treated well in prison and still has support amongst politicians in Punjab and Haryana who are interested in how DSS supporters vote and look for DSS’s political support.[8]
[7] DFAT Country Information Report, India, December 2020, 3.78, 3.79; Haryana Assembly polls: Neutralising the clout of Dera Sacha Sauda - The Hindu
[8] Weighed down, yet Dera Sacha Sauda remains indispensability in Haryana politics (deccanherald.com); Parole to Ram Rahim as per law, says Haryana minister : The Tribune India; Parole to Ram Rahim as per law, says Haryana minister : The Tribune India; Weighed down, yet Dera Sacha Sauda remains indispensability in Haryana politics (deccanherald.com)
The Tribunal is prepared accept that in the past the applicant experienced some problems in his village, perhaps due to being a Sikh who is also a member of DSS. As discussed, country information indicates that the situation for DSS supporters has improved since that time and this is consistent with the applicant’s evidence that the situation has changed for the better. On this basis, 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 that he will suffer significant harm on the basis of being a Sikh who is also a member of DSS.
In relation to the applicant’s medical condition, the applicant claimed at the hearing that he could not return to India now because he would be unable to continue with his current medical treatment. As the ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion,[9] for the same reasons as those set out in paragraphs 44, the Tribunal finds that the applicant does not face a real risk of significant harm. Therefore, 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 that he will suffer significant harm as a result of his medical condition.
[9] MIAC v SZQRB [2013] FCAFC 33
Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Rachel Da Costa
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.
…

[2021] AATA 4931

14 October 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction