1904671 (Refugee)

[2024] AATA 4424

1904671 (Refugee) [2024] AATA 4424 (28 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1904671

COUNTRY OF REFERENCE:         India

MEMBER:Senior Member G.A.F. Connolly

DATE:28 September 2024

PLACE OF DECISION:                   Sydney

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i) that the first named applicant satisfies s 36(2)(a) of the Migration Act; and

(ii) that the Iother applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 28 September 2024 at 6:59pm

CATCHWORDS
REFUGEE – protection visa – India – religion and political opinion – Sikh political activist – police and political persecution, extortion and threats – withdrawal of candidacy for local government elections – no close family in home country – cultural activities in Australia – forthright and consistent claims and evidence, and police documents provided – members of family unit wife and children – long residence and children’s education and aspirations – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (b)(i), 65, 423A
Migration Regulations 1994 (Cth), Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

Introduction

Oral Decision Delivered

1. This case was heard by me on the morning of Friday, 28 June 2024.

2. As it is, one trusts, well known, it is the usual practice of this Tribunal, overwhelmingly, to hear cases and then reserve the decision of them, with the Tribunal’s decision and reasons to be communicated in writing to applicants at a later date.

3. Owing to the sheer length of this case and its long drawn-out history, its documentary evidence and witness evidence, and my very strong personal preference for protection cases to be resolved sooner rather than later – especially where they concern children naturally anxious about their fate as well as a meritorious applicant.  In order to spare applicants any further needless anxiety or worry, I briefly adjourned the hearing, and then delivered my decision, favourable to all of the applicants, with some brief oral reasons. 

4. It makes no sense, in my view, for an applicant to this Tribunal to be left to wonder what their fate will be, in circumstances where their case will be successful. My position is held even more strongly when an applicant has children – and, here, young children – who, naturally, are no less anxious than their parents to know what their future holds for them, particularly when they are children, as in this case, who have lived for so long in Australia, have been educated here and made friends here, have formed hopes and dreams of life in Australia, and face the prospect of return to a country they do not know and which their own parents have, understandably, spoken to them of with only dread and foreboding. It bewilders me that this much would not be obvious to any reasonable person in my position, and thus a desire to be frank with an applicant, as soon as is it is possible to do so, about how their case will be resolved.   In this case, it was apparent to me at the end of a long hearing that the applicant’s case must succeed and, thus, I determined, for the above reasons, to indicate to them that they had been successful.

5. The oral reasons given on 28 June 2024 are here more completely set out, if still reduced to writing in plain terms, and I set out here why I made the decision that I did in favour of these applicants as persons who were owed protection obligations by Australia.

Case History

1. The primary applicant for the family is [the first applicant] and for ease of reference, I will refer to him as the "applicant" in these reasons. The case of the applicant’s wife and children do not, for the reasons set out in this decision, need to be considered as I have found for [the first applicant] himself. Where I refer to the whole family, it will be as the “applicants”, plural.  However, I will mainly refer to the applicant in this decision.

2. The applicant is [Age] years old and an Indian citizen, from the Punjab, bordering Pakistan.

3. The substance of the applicant's claim is based on the following:

   A.that he is a Sikh political activist from the Punjab in northern India.

   B.his father passed away, leaving him without any family to return to India. His own family lives elsewhere in [Country] and now Australia,

   C.he has been the victim of police and political persecution, and

   D.he has strongly held political views and is a political activist within the Sikh community.

4. On [in] February 2008, the applicant arrived in Australia.[1] The applicant would leave and return to Australia on several occasions between 2008 and 2015.  The applicant arrived in Australia for the final time [in] December 2015[2], following the passing of his father.  The applicant’s explanation for why he came to Australia in 2015 was that[3]:

   I came to Australia with my family after the death of my father in August 2015. I feared that I will be a victim of the Indian authorities.

   …

   The Congress Party people and the police harassed me for the reasons mentioned below. I then left India for Australia with my family.

   [1] Protection Visa Decision Record dated 08 February 2019 at page 3.

   [2] Protection Visa Decision Record dated 08 February 2019 at page 3.

   [3] Statement of [the first applicant] of 1 June 2024.

10.    In 2013, the applicant seems to have been the subject of Punjabi police reporting[4] relating to efforts to extort money from the applicant and threats to his home and family.[5]  I have not seen any challenge by the Department in any of the files before me of the authenticity of these notarised documents.

[4] Punjab Police Reports, 10 June 2013, 02 August 2013, 13 August 2013, translated and notarized in the Department’s files: DHA 57, 58, 59, 60.

[5] Punjab Police Reports, 10 June 2013, 02 August 2013, 13 August 2013, translated and notarized in the Department’s files: DHA 57, 58, 59, 60.

11.    [In] November 2015, this Tribunal decided a visitor visa case in respect of the applicant and his family. To the degree that this 2015 case is relevant to this case, it goes to the applicant’s wider family, and supports the applicant’s version of his close family relationships, and one can deduce from the decision just what impact the loss of the applicant’s father had on him.[6]

[6] AAT [Decision number] Decision Record of [November] 2015.

12.    On 12 January 2016, the applicant commenced his first application for a protection visa.[7] After what seems to have been some administrative issues that are irrelevant to this decision, on 14 October 2016, the applicants applied for protection visas.

[7] Protection Visa Decision Record dated 08 February 2019 at page 3.

13.    What happened in terms of the applicant's application for himself and his family in 2017 and 2018 is entirely unclear to me from my exhaustive search of what is before me. However, it seems that the applicant and his family lived in [City], peaceably, and whatever they did was lawful.

14.    On 30 January 2019, the applicant was interviewed by a delegate of the Minister for Home Affairs (Minister’s Delegate).

15. On 08 February 2019, the Minister’s Delegate refused to grant the applicants' protection visas under s 65 of the Migration Act 1958 (Cth) (Migration Act).[8]

[8] Protection Visa Decision Record dated 08 February 2019 at page 4.

16.    In their reasons, the Minister’s Delegate summarised the applicant's case in this way[9]:

·    The applicant came to Australia with his family on a visitor visa after the death of his father in August 2015. He fears they will be executed by the Indian authorities.

·    The applicant fears that he will be falsely accused of various cases and be jailed.

·    The applicant ran for the ‘panchayat’ elections. The Indian authorities including the police and the politicians were supporting the opposing party and they threatened to kill him and his family if he pursues his candidacy. He withdrew his candidacy because of their threat.

·    The applicant suspects that his father did not die of natural causes and the Indian authorities were responsible for his death.

·    The applicant and his family have no sufficient funds for their relocation and they are not in contact with relatives in India. They also fear being killed in other parts of India.

[9] Protection Visa Decision Record dated 08 February 2019 at page 4.

17.    In refusing the applicant’s claim, the Minister’s Delegate said this about the applicant and the plight of Sikhs like him in India[10]:

[10] Protection Visa Decision Record dated 08 February 2019 at page 4.

For the reasons explained above, I find that:

§  The applicant is a member of Amritsar party but is not actively involved in the activities of the party;

§  The applicant did not contest for the ‘panchayat’ elections or run under the banner of Amritsar;

§  Neither the applicant nor his father were harassed because of his candidacy for the ‘panchayat’ elections;

§  The applicant’s father died of a heart attack;

§  There were no false cases lodged against the applicant;

§  The applicant has at least one relative remaining in India (his maternal aunt) and does not fear harm on the basis of having no family;

§  The applicant has no fear of harm relating to the education of his children in India.

§  The applicant has no fear of harm because of his claim that Hindus or associates of the Congress Party are selling drugs and seek to destroy the younger generations of Sikh.

18.    In finding against the applicant’s claim, the Minister’s Delegate also said this about the applicant[11]:

[11] Protection Visa Decision Record dated 08 February 2019 at pages 7 to 9.

According to the latest country information, DFAT assesses that leaders and members of opposition political parties do not face official or societal discrimination. The risk of political violence between rival supporters increases during parliamentary and state elections, especially in states where results are tightly contested. However, in general, elections in India are peacefully conducted. India is a long-established and dynamic multi-party democracy with high levels of political participation. Free and fair elections have been held regularly since independence. Following the victory of the National Democratic Alliance coalition led by the Bharatiya Janata Party (BJP) in the May 2014 elections, Narendra Modi became Prime Minister, beating the Indian National Congress Party (Congress) who has dominated Indian politics for much of the post-independence era. Hindu nationalist groups have increased their influence under the BJP government. Critics of the BJP accuse it of being hostile to ethnic and religious minorities, particularly Muslims.

Country information also states that Akali Dal was founded in 1920 as a representative body to advocate for Sikh rights in British India. Post-independence, the Akali Dal or Shiromani Akali Dal (Supreme Akali Party) emerged as the main political rival to Congress in Punjab, particularly following the creation of a Sikh majority state in 1966. The party became highly factionalised in the 1980s, and has since split into a number of rival parties. The major faction is the Shiromani Akali Dal(Badal), which was the senior coalition partner in government with the BJP in Punjab before losing power to the Congress Party in state assembly elections held in early 2017. Violence involving members of the Shiromani Akali Dal occurred during elections held in Punjab in 2013 and 2014.

Furthermore, country information shows that there are two political parties under the name Shiromani Akali Dal (hereafter the Akali Dal): Akali Dal, led by Parkash Singh Badal, the Chief Minister of Punjab; and Akali Dal (Mann), which is also called the Akali Dal (Amritsar). This latter group is led by Simranjit Singh Mann. According to the WSO representative, the Akali Dal (Amritsar/Mann) and another faction called Akali Dal (Panch Pardhani) are groups that advocate the creation of Khalistan, a separate Sikh state. The WSO representative said the Akali Dal (Amritsar/Mann) and Akali Dal (Panch Pardhani) "oppose" the Akali Dal (Badal), the ruling party, and have consequently faced "harassment" from them. The Panthic Morcha is a coalition group of the Akali Dal (Panch Padhani) and other Akali Dal groups that opposed the Akali Dal (Badal) in the 2011 elections of the Shiromani Gurdwara Parbandak Committee. The Times of India reports that, in August 2011, the Panthic Morcha accused the ruling Akali Dal (Badal) party of "threatening them" and filing "false" criminal charges against them in order to "force" them to withdraw from the SGPC election. The WSO representative noted that members of the Akali Dal (Amritsar/Mann and Panch Pardhani) are subject to "surveillance". In addition, "those Sikhs who are known to be advocates for Khalistan or suspected sympathizers of the militant movement are regularly monitored".

On the ‘khalistan’ movement, country information states that the violent crisis over secession and autonomy between Shiromani Akali Dal (SAD) Party and Sikh groups fighting for an independent Sikh state of ''Khalistan”, on the one hand, and the Indian government, on the other, continued. It mainly took place in the state of Punjab. While SAD no longer attempts to achieve a separate Sikh state but advocates Sikh rights and greater autonomy, there are still several militant groups fighting for secession.

Based on the documents presented by the applicant and the above country information, I accept that the applicant is a member of Shiromani Akali Dal (Amritsar) which is a registered political party in India. However, I do not accept that he is an active member of the party. While the president of the party, Simranjit Singh MANN confirmed in writing that the applicant is a permanent member of the party, the applicant was not able to provide evidence of active involvement with the party. He said that he did not perform any other role for the party aside from being a member. He did not provide any details of involvement as a member in party activities. The reference letter of Mr MANN did not also state what contribution the applicant had extended to the party.

I do not accept that the applicant contested for the position of ‘sarpanch’ in the ‘panchayat’ elections and ran under the banner of Amritsar. The applicant has no evidence to support the lodgment or withdrawal of his candidacy. I am also not persuaded that the applicant can choose to decide for himself to run under the Amritsar banner without going through any procedure laid down by the party…

19.    On 28 February 2019, the applicant applied to this Tribunal for review.

20.    On 28 June 2024, the applicant’s case came before this Tribunal for review

21.    In the hearing before this Tribunal, the applicant’s case was in almost exactly the same terms as his evidence before the Minister’s Delegate:

¾the Minister’s Delegate did not understand the applicant’s evidence;

¾the applicant had a large house and farm but had to abandon his life because of his fears of political persecution and come to Australia;

¾the applicant was a nominee for head councillor for his village in 2013 representing the Sikh Amritsar party;

¾he says he was threatened, including with acts of retribution, by BJP members, including the filing of false charges against the applicant in 2013 and 2014, leading to the applicant to come to Australia [in] December 2015;

¾the applicant made his protection visa application on 14 October 2016;

¾the applicant’s father was a member of the Khalistan movement, even if never an overt supporter, but the father passed away in 2015;

¾the applicant’s sister in [Country] urged the applicant to stay in Australia;

¾Applicant lives in [City] now, where he works in [workplaces], as [an occupation 1];

¾does not want to return to India as he says most Indians want to make India into a Hindu country and, while the applicant supports Khalistan independence, he feels Sikhs have an exceedingly difficult place there.

¾The applicant stressed his vulnerability as he has no living relations in India now, as his parents have passed away, and all his siblings live overseas, as they too felt they had no future in India, either; and

¾The applicant is highly active in the Sikh diaspora, and he is a host of the annual June gathering in [City] for the Sikh communities. The gathering is held in June every year in honour of the Sikhs murdered in India in June 1984.  The applicant supports an independent Sikh state of Khalistan but says he has never supported violence to achieve that aim.

22.    The applicant added in respect of his family that:

¾they are now heavily involved in their new lives in Australia;

¾they are involved with the Sikh community in [City];

¾they are involved in the [City] [sport] team and its [sport] club;

¾the applicant’s eldest daughter, [the third applicant] ([Age]), is completing High School and also doing [courses], in order to being a [Occupation 2] placement later this year;

¾the applicant’s younger daughter, [the fourth applicant] ([Age]), is a student in [Year], who wants to study [Subject] so she can have a career where she helps people; and

¾the applicant’s youngest son, [the fifth applicant], is [Age] years old and only recalls living in Australia.

Obviously, the applicant’s case would be, if he was unsuccessful in his protection claim, that his case be referred for ministerial consideration, as his family has effectively joined the Australian community and cannot be uprooted from it, and returned to India, without significant damage being done to them, especially his young children, who have lived most of their lives here in Australia.  For reasons that I have set out here, I do not consider it necessary to explore this issue, but if I did have to consider this case for ministerial intervention then, given all the facts and circumstances of this case, then I certainly would do so.

23.    The applicant was keen to stress that he had no hostility towards Hindu Indians.  However, the applicant repeated his own fears that, as he has been an open Amritsar candidate and supporter, he will be targeted for his political views, especially when he has no family left in India.  The applicant cited in support of his claims his evidence to the Minister’s Delegate and the Department of the charges made against him.

24.    Post-hearing, on my review of the applicant’s interview with the Minister’s Delegate on 31 January 2019 and related materials in the Tribunal’s possession, it became clear to me that the applicant did speak, in some detail, about his plight, while being interrupted by the Minister’s Delegate.  I do not mean to be unfairly critical here, as Minister’s Delegates do have a very difficult task to perform in each case - and an enormous caseload of applicants to interview. This said, while the Minister’s Delegate is a questioner of applicants, they should not be in the business of trying to interrupt or badger an applicant, especially in circumstances where an applicant is trying their best to recount events in their life which are, quite obviously, painful and sad.  The applicant did, at this first interview, set out his grounds for fearing return to India and who the police were that had threatened him.[12]  These claims were reinforced by other witnesses of the applicant.[13]  The applicant’s version of events in his case had, in all stages of his applications to the Department and this Tribunal been strikingly similar, if not precisely identical. 

[12] See Minister’s Delegate interview of the applicant on 31 January 2019.

[13] See the affidavit of [name deleted], 17 May 2024 [12717621 3 June 2024] Attachment 7.

25.    Accordingly, I have found in favour for the applicant and his family.

CRITERIA FOR A PROTECTION VISA

26. The criteria for a protection visa are set out in s 36 of the Migration 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.

27. 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.

1. 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).

2. 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.

3. 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

31. In accordance with Ministerial Direction No.84, made under s 499 of the Migration 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.

STATUTORY GUIDES FOR DECISION-MAKING

32.    The proceedings before the Tribunal are inquisitorial, as befits merits review, and the Tribunal is not in the position of a contradictor. It is thus always for any applicant to make their case. It is for the applicant to advance whatever evidence or argument they wish to advance in support of that case. In these cases, an applicant’s contention will be that Australia owes them protection obligations. It is this Tribunal’s task to inquire into the claim and decide whether the claim has been made out.

33. To emphasise the point, per ss. 5AAA and 423A of the Migration Act, an applicant is required to make their own case in as much detail as possible – and to do so at their first reasonable opportunity.  Otherwise, adverse inferences may be drawn against cases made later and, especially, after significant delay.  If an honest person is given an honest account of their own personal history, then there is, generally, no good reason why that account should be varied or become enlarged over time.  While this is not any sort of iron rule to be applied inflexibly, common sense requires that a certain scepticism should be exercised where an applicant’s personal history includes ‘new facts’ and ‘new occurrences’ not previously disclosed by them to the Department or the Minister's Delegate when she or he had the opportunity to do so.

34.    I will now discuss these two sections in more detail:

a.section 5AAA of the Migration Act makes clear that it is the responsibility of an applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify or assist in specifying particulars of the claim or to in fact establish or assist in establishing the claim. This is consistent with the well-settled proposition that it is for an applicant to make their own case. Further, and critically, applicants are expected to present their case in full before the primary decision-maker and not to wait until after the primary decision has been made. In this respect, two obligations are particularly relevant: the ongoing requirement under s.104 of the Migration Act for an applicant to ensure their relevant details are correct and up to date, and, also, for them to amend any incorrect information at the first reasonable opportunity; and

b.section 423A of the Migration Act requires the Tribunal to draw an adverse inference about the credibility of an applicant’s claims or evidence where the applicant raises a claim or presents evidence that was not put forward before the primary decision was made. In such a case, if the Tribunal is satisfied that the applicant does not have a reasonable explanation about why the claim was not first raised or the evidence was not first presented before the primary decision, the Tribunal is required to draw an inference unfavourable to the credibility of the applicant’s claim or evidence. Applicants, therefore, who do not present all of their claims and evidence to the primary decision-maker must have a reasonable explanation for their not doing so.

35.    While the Tribunal is conducting a ‘de novo’ review, it cannot close its eyes to delay and to ‘recent invention’ of what is purported to be ‘old evidence.’  These are less matters of strict rules of evidence than the application of what I would simply term ‘common sense’.  This said, there may be good reasons for a failure by an applicant to immediately recall all aspects of an applicant’s experience that may, in turn, soundly ground a protection claim.  It is crucial to always keep an open mind and to be fair and just in all the circumstances of an applicant’s claim.  Yet, ultimately, it is always the applicant’s own case to make.

36. In this case, I have considered all of the material afresh in all of the Tribunal files and Department files, and I have made my own assessment and determination as to whether the applicant meets the criteria for the grant of a protection visa. While as noted above, the Tribunal is inquisitorial and can seek out the evidence it requires in order to reach a determination, the Tribunal is not required to actively seek out evidence to support an applicant’s claim. It is, rather, the responsibility of each applicant to specify all the particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such a claim: s 5AAA of the Migration Act.

CONSIDERATION OF CLAIMS AND EVIDENCE

37.    Noting the above, then, the issue in this case was whether the applicant had or had not made out his claim that Australia owes him protection obligations.

38.    As a general rule, this Tribunal will grant the benefit of the doubt to applicants who are generally credible even if they are unable to substantiate all of their claims. This is especially so where they have made a claim that is consistent with the evidence, and there is no contradictory evidence or information, from either the Department or from country information materials. At the same time, an applicant who is not generally credible, or who is especially dishonest or evasive, will, almost always, have their case rejected.

39.    To reiterate what I have said in other cases: where an applicant makes a claim of a fear of persecution and/or harms, the mere fact that a person claims this fear for a particular reason does not establish either the genuineness of the asserted fear, or that the fear is well-founded, or that it is for the reason claimed. A fear of persecution or harm is not well-founded if it is merely assumed, or merely asserted, or if its basis is mere speculation. An assertion, however, passionately and/or repeatedly it is made, is not proof of its truth.

40.    Although the concept of onus of proof is inappropriate to administrative inquiries and decision-making of the kind done by this Tribunal, the relevant facts of an individual’s case will have to be supplied by the applicant in as much detail as is necessary to enable the decision-maker to establish the relevant facts.

FINDINGS

41.    In this case, per my narration of the history of this case as set out above, I determined on Friday, 28 June 2024, to give the benefit of the doubt in this case to this applicant. 

42.    Overall, I found the applicant to be very honest and forthright.  I found the applicant able to substantiate his claims.  His claims were and are consistent with all of his prior evidence – and these claims were not amended or ‘improved’ upon by him, nor were they given any sort of gloss or ‘spin’.  Overall, I found the applicant to be very honest in his narration of his difficult life and why he feared return to India, and why he feared return to India in respect of his family.

43.    I note that the Department did not provide any contradictory evidence or information on which I could safely rely and did not seem to grasp what the applicant said in relation to his life in India and, in particular, the vulnerability of Sikh activists in the position of the applicant. I also find that the Department did not give anywhere near enough weight to the applicant’s changed position, after his father’s passing, where he no longer had the familial links and protections in India that he may once have enjoyed.

44.    My findings are fortified by what I consider to have been the Department’s failure to properly challenge Indian policing documents that, on their own readings, make out some details of the threats that the applicant has said were against him and his safety.[14]  While perhaps not conclusive of the applicant’s feared harms, these documents did at least make a prima facie case that the applicant’s claims were supported by contemporaneous documentation.  In other words, the documents supported what the applicant had been saying all along in his case before the Department and this Tribunal.

[14] Punjab Police Reports, [June] 2013, [August] 2013, [August] 2013, translated and notarized in the Department’s files: DHA 57, 58, 59, 60.

45.    I find, therefore, that the applicant’s claims were made consistently with the evidence and should be accepted by this Tribunal.

46.    Overall, in all of the facts and circumstances of this case, I find that the applicant, as a Sikh political activist and supporter of the Khalistani independence movements in India, is someone who has a well-founded fear of persecution in India for reasons of his political opinions, and whose fears of returning to India are fairly grounded.

DECISION

47.    The Tribunal remits the matter for reconsideration with the following directions:

(i) that the first named applicant satisfies s 36(2)(a) of the Migration Act; and

(ii)that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 28 September 2024 at 6:59pm

Graham Alfred Frederick Connolly
Senior Member
Administrative Appeals Tribunal

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.

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1. Protection visas – criteria provided for by this Act

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   (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.

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