1828862 (Refugee)

The applicant, an Indian national and a Sikh, sought a protection visa, claiming he feared persecution in India due to his affiliation with the Dera Sacha Sauda (DSS) religious sect. He alleged that following the DSS's refusal to support the ruling Bhartia Janta Party (BJP) in elections, he and his family faced harassment, threats, and an attack by members of the ruling party, with the police failing to act. The applicant arrived in Australia in March 2016 and subsequently applied for a protection visa.

The central legal issue before the Tribunal was whether the applicant met the criteria for the grant of a protection visa, specifically whether Australia had protection obligations towards him. This required determining if he was a refugee under section 36(2)(a) of the Migration Act 1958, or if he faced a real risk of significant harm as a necessary and foreseeable consequence of removal to India under section 36(2)(aa). The Tribunal also considered the definition of "significant harm" and the circumstances under which a person would not be considered to face such a risk, as outlined in sections 36(2A) and (2B).

The Tribunal accepted the applicant's evidence that he and his family were followers of the DSS and that he had been involved in its activities. It also accepted that he continued to privately follow the DSS in Australia. However, the Tribunal found that the applicant did not satisfy the refugee criterion under section 36(2)(a). Furthermore, the Tribunal concluded that the applicant did not satisfy the complementary protection criterion under section 36(2)(aa). The Tribunal affirmed the decision not to grant the applicant a Protection visa.