1904862 (Refugee)
[2022] AATA 664
•8 February 2022
1904862 (Refugee) [2022] AATA 664 (8 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1904862
COUNTRY OF REFERENCE: India
MEMBER:Rachel Da Costa
DATE:8 February 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 08 February 2022 at 5:46pm
CATCHWORDS
REFUGEE – protection visa – India – political opinion – Shiromani Akali Dal (Mann) – All India Sikh Federation of Punjab member – attacks by Congress Party members – false criminal proceedings – forced recruitment – physical attacks – fear of killing – state protection – police corruption – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424, 499
Migration Regulations 1994, Schedule 2CASES
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 15 February 2019 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 23 December 2016. 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 protection visa application form the applicant provided the following information. He was born on [date] in [Village 1], Jalandhar province, Punjab state in India. This is where he lived all his life prior to coming to Australia. He is an Indian citizen and speaks, reads and writes Hindi, Punjabi and English. His religion is Sikh. He completed 12th class in [year] at [institution]. He is not in contact with his relatives outside Australia. He has never worked. He is the subject of a criminal investigation or has criminal charges pending against him relating to possession of weapons and drugs put by the police in a fake case in India.
He arrived in Australia [in] August 2014 on a Student visa, travelling on his passport issued by the Republic of India [in] 2013. His Student visa was cancelled on 5 December 2016. Since that time he has remained in Australia as the holder of successive Bridging visas. He has never travelled to any country other than Australia.
Evidence before the Department
Protection visa application
The applicant makes the following claims in his protection visa application form.
· He came to Australia on a student visa.
· He left India because he was an active member of the All India Sikh Federation of Punjab. Their motive was to stop drugs or other things.
· These things were not liked by police and politicians so they made fake cases on them putting drugs and weapons in their house.
· Later they arrested them and he had to pay a bribe not to have action taken against him but the case is still pending.
· If he returns he will be arrested or tortured mentally and physically and they will reopen the cases that are still pending.
· The police and political leaders put fake cases on them to torture them because they were against them.
· He can’t ask for help from the police because they are responsible for it.
· He can’t move to another part of the country because they keep watching him.
The interview
On 5 February 2019, the applicant attended an interview with the Department to discuss his protection visa application. During the interview, the applicant made a number of new claims as follows:
· He was a member of the Shiromani Akali Dal (Mann) Party (the Mann party). He joined the party on [Date 1] 2012 at a Sikh festival.
· As a party member he would put up posters for party gatherings, serve food and attend rallies. He recruited more than 20 people to join the Mann party. He told people about the party and its policy. He was going to stand as a candidate at the election. He was not a leader but he was working with the youth for the young people.
· The ruling party in Punjab is the Bharatiya Janata Party (the BJP) with the Akali Dal (Badal) party (the Badal party).
· In July 2013, 4 or 5 people from the BJP and the Badal party approached the applicant and tried to get him to work for them. The applicant refused and they said if he didn’t join them they would kill him.
· Before he came to Australia he was attacked twice and the attackers tried to kill him. These attacks took place [in] October 2013 and [in] December 2013.
· On [the specified day in] October 2013, he was coming home from a rally and some Badal party people in a car stopped him and told him to join them. When he refused they bashed him. It was 4 or 5 people and there was a Badal party logo on the car. The applicant went home and told his father and they went to the police station the same day. The police said they would not accept the complaint and told the applicant if he came back they would put a fake case on him and put him in jail.
· On [a day in] December 2013, the applicant was coming home from the fields with his father. He was attacked again by some Badal party and BJP people who were in a car with the Badal party logo. It was night time and there were 6 or 7 people. They said they wanted him to work for them. The people bashed him with a baseball bat and used a sword and tried to kill him. Some people from the village took him to hospital.
· After that, his father took him to his uncle’s house and hid him. The people came there too and tried to find him. His family got scared and sent him to Australia.
· While he was in India the police put fake drug cases on him. There are no First Incident Reports (FIRs) about this.
· He was not arrested in India but the police took him to the police station to harass him. This happened sometime between the two attacks in 2013.
· The applicant’s brother went missing in April 2016 on his way home from a rally. His family do not know what has happened to him.
· The police keep coming to his parents’ house about once a month and asking them where he is. They do this at the direction of the Badal and BJP parties.
· His father, who also supports the Mann party, has been bashed by the police in 2018 without an FIR and also when he tried to report the applicant’s brother’s disappearance to the police.
· If he returns to India the BJP and Badal party people would find him and kill him or send him to jail for a long time.
At the interview the applicant provided the following documents:
· A letter of support dated [in] January 2019 on Shiromani Akali Dal letterhead purporting to be signed by [a named official] of the Mann party. The letter states that the applicant was a regular and permanent member of the Mann party and he is residing in Australia because his life was endangered. It says the applicant’s tasks for the party included distributing flyers, putting up posters for events, assisting participants at rallies, providing food and water services at party events and encouraging others to join the party. The letter says the applicant was threatened and harassed by members of the BJP party and Badal party because of his continuous support of the Mann party. It says if he comes back to India he will be persecuted by the Badal party and BJP party. The letter explains the purpose of the Mann party and attaches several articles, letters and reports which refer to the human rights situation of Sikhs in the Punjab and minorities in India more generally. The letter says the Mann party demands Sikh rights and a separate state of Khalistan in a peaceful manner. It says the applicant’s father is participating in this peaceful battle.
· Non judicial affidavit dated 25 January 2019 from the applicant’s father, [named]. The affidavit says the applicant had to leave India due to threats and attacks committed by Badal and BJP party workers. It says the applicant was attacked and harmed twice by Badal party members. [In] October 2013 when the applicant was coming home on his motorbike a car with the Badal symbol on it stopped him. Badal party members threatened him to stop supporting the Mann party and when he refused they started beating him. The applicant told his father what had happened. The applicant went to the police but they would not take any action because of Badal party influence and told the applicant if he tried to lodge a complaint again he would be screwed in a false case and sent to jail for life. His son continued working for the party and [in] December 2013 was attacked again by Badal party workers when he was working in the fields. They came armed with weapons and told the applicant he had to stop supporting the Mann party. They beat him unconscious and he had to remain in hospital for some days. The family sent him to his uncle’s place to hide but the Badal workers were searching for him and would kill him if they found him. Because he was still not safe his family sent him outside India. BJP and Badal workers are still looking for him.
· Non judicial affidavit dated 25 January 2019 from the applicant’s uncle, [Uncle A], saying the applicant’s life is in danger from BJP and Badal party people who attacked him twice. They beat the applicant to try to get him to stop his support for the Mann party and to join their party. The affidavit says the applicant came to his uncle’s house to hide but he was not safe there so his family sent him outside India. BJP and Badal workers are still looking for the applicant.
· Non judicial affidavit dated 25 January 2019 from [Leader A] who is head of the applicant’s village, [Village 1]. He says being supporters of the Mann party, the applicant and his family are well known in the village and the family supported him in his election as head of village. Badal party and BJP workers started interfering in the work of the applicant because of his support for the Mann party. It became difficult for the applicant to survive in India and his family was stressed and did not get any help from the police. Due to threats of the BJP and Badal party workers, the applicant’s family sent him outside India. BJP and Badal workers are still looking for the applicant.
· Non judicial affidavit dated 25 January 2019 from [name] who is a neighbour of the applicant in his village. The affidavit says the applicant was attacked by workers of the Badal party and BJP party because they wanted him to join their party and he refused. The applicant was threatened and beaten up. [This neighbour] visited the applicant’s home to pay sympathy after the attacks. The family did not get help from the police. BJP and Badal party members visit the village to search for the applicant.
The delegate’s decision
On 15 February 2019, a delegate of the Minister refused the applicant’s protection visa application. The delegate was not satisfied that the applicant’s claims and evidence were credible. The delegate did not accept that the applicant was a member of the Mann party and nor that he was harassed, threatened or attacked by members of the police, the BJP or the Badal party. The delegate was not satisfied that the applicant is a refugee or that he met the complementary protection criterion. On this basis, 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 2 March 2019, 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. On this basis, the Tribunal considers the applicant to be on notice of the delegate’s concerns and findings.
Additional material
On 3 November 2021, the applicant submitted the following additional documents:
· Letter dated 1 November 2021 from the President of [Religious Community 1] stating that the applicant used to visit [their premises] every day to pray and took part in communal activities.
· Affidavit of the applicant’s father, [named], dated 1 November 2021. He states that they are still facing political intimidation from the Badal party and BJP party workers. These people are looking for the applicant and frequently visiting their village and inquiring about where he is. The applicant’s father started supporting the farmers’ protest. Badal and BJP party workers came to know about his support for the protest and attacked him. [In] September 2021, he was returning from the farmers’ protest when Badal and BJP workers blocked his way and told him to stop his support for the protest. They also tried to force him to tell them the applicant’s exact location. When he did not tell them anything, they became angry and attacked him. Some villagers heard and saved him. Before leaving, the attackers threatened to kill the applicant when they saw him. [His father] was taken to the doctor for treatment.
· Affidavit of [Mr A] dated 1 November 2021 who lives in the same village as the applicant’s family. His affidavit states that on [the day in] September 2021 when he was going towards the village he saw Badal and BJP party workers beating the applicant’s father who was screaming for help. [Mr A] and others rushed to help him and the attackers ran away. Before leaving, the attackers threatened to kill [the applicant]. [Mr A] and his friends took the applicant’s father to a doctor for treatment.
· Letter/medical certificate dated 1 November 2021 from [Doctor A] of [Clinic 1] stating that [the applicant’s father] was brough to the clinic on [the specified day in] September 2021. The document states that [the applicant’s father’s] body was injured with bruises and swelling and he was also internally injured. He was treated with medicines.
On 24 January 2022, the applicant submitted the following additional documents:
· Further written submissions which reiterate his claims. The Tribunal notes that for the most part, the wording of the claims in this document closely resembles the wording used by the delegate where he set out the applicant’s claims in his written decision. The submissions say that the applicant will face a real chance of persecution if he returned to India due to his political opinion and due to being a member of the Sikh religion.
· The applicant’s tax return for the financial year ending 30 June 2021.
On 29 January 2022, the applicant provided a witness statement of [Mr B]. In his statement, [Mr B] states that he has known the applicant for four years and the applicant is employed by his company. He states that the applicant has told him about what happened to him while he was living in India and that the applicant is fearful to return to India because he will be harmed by the Badal and BJP party members/followers and is fearful for his life. He states that the applicant has told him the government in India will not protect him from the Badal and BJP party members and he cannot relocate inside India. He states he has seen the applicant upset about what happened to him and being returned to India if his protection claim is not accepted. He states that the applicant is a good character.
The hearings
The Tribunal exercised its discretion to hold the hearings by video using the Microsoft Teams platform with the agreement of the applicant and his representative. The hearings were held during the COVID-19 pandemic. The Tribunal determined it was reasonable in the circumstances to hold the hearings by video. The applicant lives in regional New South Wales, several hours’ travel by car or train to Sydney. The Tribunal considered the fact that the applicant has provided a number of documents to the Department and the Tribunal in support of his application and decided that the Tribunal could discuss these documents with the applicant by video in a way that was fair and would not disadvantage him. 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 hearings were not to be conducted by video.
The applicant appeared before the Tribunal on 10 November 2021 and 1 February 2022 via Microsoft Teams video to give evidence and present arguments.[1] The applicant was represented in relation to the hearings by his registered migration agent however his registered migration agent did not attend the hearings. The Tribunal hearings were conducted with the assistance of an interpreter in the Punjabi and English languages. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments and that he was able to participate fully in the hearings in a meaningful way.
[1] Where of assistance for clarity, the Tribunal refers to these hearings as the ‘first hearing’ and ‘second hearing’ respectively.
Nationality
The applicant claims to be a citizen of India and provided to the Department a copy of his Indian passport issued [in] 2013. 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.
At the first Tribunal hearing, the applicant gave evidence that he filled out his protection visa application form himself and that all the information in his application for refugee status is true and correct. The Tribunal asked the applicant whether there had been any changes since he filled out his application that he wanted to mention and he said there were not.
During the hearings, the Tribunal discussed with the applicant his family, education, employment, where he lived in India, his migration history, the problems he claimed to have experienced in India and why he fears returning to India. The Tribunal found there were significant discrepancies in the applicant’s evidence between his protection visa application, what he told the delegate during his interview, the evidence he gave to the Tribunal and the content of documents he provided to the Department and Tribunal in support of his claims. As a result, the Tribunal has concerns about the truthfulness of the applicant’s evidence in relation to claimed events in India and did not find him to be a credible witness.
The Tribunal’s concerns are set out below.
First, discrepancies in the applicant’s evidence about the two attacks he claims to have suffered in India raise significant concerns for the Tribunal about the applicant’s credibility.
In his protection visa application, the applicant did not claim to have been attacked.
In his interview with the delegate, the applicant claimed that he was the victim of two attacks. He claimed the first attack took place [in] October 2013. He said he was coming home from a rally and some Badal party people in a car stopped him and told him to join their party. When he refused they bashed him. It was a group of four or five people and there was a Badal party logo on the car. The applicant went home and told his father and they went to the police station the same day. The police said they would not accept the complaint and told the applicant if he came back they would put a fake case on him and put him in jail. After that he went home and continued his work for the Mann party.
In the interview with the delegate, the applicant claimed that the second attack took place [in] December 2013. The applicant said he was coming home from the fields with his father. He was attacked again by some Badal party and BJP people who were in a car with the Badal party logo. It was night-time and there were six or seven people who were in the group that attacked him. They said they wanted him to work for them. The people bashed him with a baseball bat and used a sword and tried to kill him. Some people from his village took him to hospital. He didn’t go to the police.
As mentioned in paragraph 7 above, at the interview the applicant provided a non-judicial affidavit dated 25 January 2019 from his father, [named], which purports to confirm the dates and circumstances of the two attacks. The Tribunal sets out its concerns and findings in relation to the genuineness of this document and others provided by the applicant in paragraphs 72 to 76 below, however for present purposes, the Tribunal notes that the information about the claimed attacks in the affidavit from the applicant’s father is mostly consistent with what the applicant told the delegate in his interview.
In the first Tribunal hearing, the applicant gave evidence that the first attack took place sometime between August and October 2012. He said that he was coming back to his village from a Mann party event. He was with two or three friends and they were on motorbikes. Some people were walking on the roadside and stopped them by waving their hands. The applicant and his friends stopped because they thought the people might need some help. He thinks there were four or five of them. When the applicant and his friends stopped, these people said to them that they should stop their activities with the Mann party and when the applicant said they can’t do that, the people attacked them. They used baseball bats, fists and kicked them. The applicant and his friends didn’t get a lot of injuries. People from the nearby village saw the fight and came running and saved them. They took the applicant and his friends to the doctor who did a bit of treatment and sent them back to their village. The Tribunal asked the applicant who the people were that attacked them. He said they were Badal party people. They were all wearing turbans and one of his friends recognised them as Badal party people later.
The Tribunal asked the applicant whether anything happened after the attack and the applicant replied ‘not really’. The Tribunal asked him what he did after that and the applicant said he went back to doing his activities with the Mann party. The Tribunal asked the applicant whether there was anything else he wanted to say about what happened and he said his family wanted him to decrease his activities and they were scared for him so they sent him to stay with relatives in another state (Uttar Pradesh) and that is where the second attack happened.
The Tribunal asked the applicant when his family sent him to Uttar Pradesh and he said at the end of January 2013. He said he had been there for four or five days when the second attack happened. The applicant gave evidence that his father took him to Uttar Pradesh to drop him off but had gone by the time the second attack happened. The applicant said he went out for a walk and saw the Badal party sticker on a car. When he saw that he changed his path because he didn’t know who it was. Four or five people came out of the car and caught him and beat him. They attacked him with fists and a sword. He had cuts on his chest and they left him there. He was taken to a doctor in Uttar Pradesh and then his family brought him back to Jalandhar where he spent about a month in hospital. After the second attack, while he was recovering, he went to the police but they would not listen to him.
In the first hearing, the Tribunal raised with the applicant its concerns about discrepancies between the evidence he gave to the delegate, information contained in documents he provided, and the evidence he gave to the Tribunal about the timing, detail and location of the claimed attacks. The Tribunal explained that these discrepancies raised concerns for the Tribunal about whether the applicant’s claims about what happened to him were true. The applicant responded that he can’t say much about this. He has given the information which is true to the best of his knowledge. He said there can be discrepancies in terms of dates but the information is true.
The Tribunal does not accept the applicant’s response as an adequate explanation for the discrepancies in his evidence about the attacks. While discrepancies in the recall of dates can be accepted by the Tribunal in some circumstances, the Tribunal considers the difference in the dates given by the applicant in his interview with the delegate and in the Tribunal hearing to be significant and problematic in terms of his credibility. In his interview with the delegate, the applicant was very specific about the dates of the claimed attacks, namely, that they occurred on [a specified day in] October 2013 and [another in] December 2013. He provided an affidavit from his father dated 25 January 2019 which confirms those specific dates, presumably in an attempt to reinforce the veracity of his claims.
In the first Tribunal hearing, the applicant gave a date range of August to October 2012 for the first attack and said the second attack occurred in late January 2013. Given how specific the applicant was about the timing of the attacks in his interview with the delegate and the fact that he provided an affidavit from his father confirming those particular dates, the fact that the applicant gave such different evidence to the Tribunal about when the claimed attacks occurred raises serious concerns for the Tribunal about his credibility and the genuineness of his claims.
The Tribunal’s concerns are compounded by discrepancies in the applicant’s evidence about where the attacks took place and other details. In particular, in his interview with the delegate the applicant said that the second attack took place when he was coming home from the fields with his father, which suggests it took place somewhere near his village in Punjab state. The affidavit from the applicant’s father dated 25 January 2019 says the attack took place when the applicant was working in the fields and suggests this was near their village. The affidavit is not clear about whether the father was with the applicant at the time of the attack. By contrast, in the first Tribunal hearing the applicant gave evidence that the second attack took place in another state of India (Uttar Pradesh) where he had been sent to stay with relatives and that at the time the attack took place he was out for a walk. This is completely different from what the applicant told the delegate and what the affidavit from the applicant’s father says.
Further, the applicant told the delegate that during the first attack some people in a car with the Badal party logo on it stopped him. The applicant told the Tribunal that during the first attack he was stopped by a group of people walking along the roadside.
The applicant told the delegate he was attacked with a baseball bat and a sword during the second attack. He told the Tribunal that he was attacked with a baseball bat during the first attack and a sword during the second attack.
In light of the fact that the applicant provided additional written submissions prior to the second hearing reiterating his claims, the Tribunal put its concerns to the applicant again in the second hearing about discrepancies in his evidence about the attacks. The Tribunal put to the applicant that he had not mentioned the attacks at all in his protection visa application form. The Tribunal reminded the applicant that in the interview with the delegate he said the attacks took place on specific dates in October and December 2013 near his village and that he had described to the delegate what happened and provided affidavits in support of this. The Tribunal noted that this version of events is reflected in the written submissions the applicant provided on 24 January 2022 prior to the second hearing. The Tribunal then put to the applicant that in the first Tribunal hearing, the applicant gave very different dates for when the two attacks occurred (late 2012 and early 2013), he gave evidence that the second attack took place in Uttar Pradesh rather than near his village, and he gave different evidence about what happened during the attacks. The Tribunal explained to the applicant that these discrepancies in his evidence raised concerns about whether the evidence he had given about what happened to him in India was truthful.
In response, the applicant said that when he lodged his protection visa application he mentioned everything briefly, he had little time and just highlighted the main problems. He was by himself and couldn’t do much and just mentioned the police cases. He said that regarding the attacks, they happened in Punjab on [specified days in] October and [in] December 2013 and they occurred in his village. He said the attack in Uttar Pradesh was a different attack and he had a few attacks. He said there could have been a mismatch in the dates and he had been nervous and there was depression. The Tribunal asked the applicant what he meant by being nervous and there was depression. The applicant responded that he meant in the hearing and the dates not matching. He said he had been nervous and could not understand what he was saying but the attacks were real. They were not fake. The Tribunal asked the applicant again what he meant by depression. The applicant responded that ever since he was involved in these problems he had lost his sense of peace and he feels depressed when he thinks about what is going on in India. If he goes back his life is dead. The Tribunal asked him if he was receiving any medical treatment for depression or anything else and he said he was not.
The Tribunal does not accept the applicant’s explanation for the discrepancies in his evidence about the attacks. First, based on the applicant’s evidence to the Tribunal it does not accept that he is suffering from depression or that this accounts for the discrepancies in his evidence. Secondly, the Tribunal is prepared to accept that the applicant, like many applicants who appear before the Tribunal, was nervous at times giving evidence in the first Tribunal hearing. However, the Tribunal does not accept that this accounts for the significant discrepancies between the applicant’s evidence to the Tribunal in the first hearing compared to what he told the delegate and the information contained in the affidavits and submissions he has provided to the Department and Tribunal, relating to the claimed attacks. For example, the Tribunal does not accept that being nervous explains the applicant telling the delegate that the second attack happened near his village (and providing affidavits in support of this) and telling the Tribunal in the first hearing that the second attack happened in a different state of India, namely Uttar Pradesh, where he had been sent to stay with relatives.
In the second hearing, the applicant explained that he did not mention the attacks in his protection visa application because he ‘just mentioned everything briefly’ and highlighted the ‘main problems’. He said he was by himself and couldn’t do much and just mentioned the police cases. The Tribunal does not accept this explanation. From the time of his interview with the delegate, the claimed attacks have amounted to the applicant’s central claims of harm rather than his interactions with the police. For example, the applicant told the delegate all about the attacks but did not mention the fake police cases until prompted in the interview. The Tribunal considers that if the applicant ‘just mentioned everything briefly’ and the claimed attacks were part of his ‘main problems’ and they in fact occurred, the applicant would have mentioned them in his protection visa application. The fact that he did not mention them in his protection visa application raises concerns for the Tribunal about his credibility and the genuineness of his claims.
Further, in the second hearing the applicant gave evidence that the original October and December 2013 dates for the two claimed attacks were correct, that the attacks happened in his village and that the attack in Uttar Pradesh was a different attack. The Tribunal does not accept this explanation. As set out in paragraphs 32 and 33 above, the applicant’s evidence in the first hearing was very clear that the second of the two claimed attacks took place in Uttar Pradesh. In the Tribunal’s view there was no ambiguity about this. The Tribunal considers that this discrepancy in the applicant’s evidence about where the second attack occurred and his new claim in the second hearing that the attack in Uttar Pradesh was a different attack, along with the Tribunal’s other concerns discussed above about his evidence, raises serious doubts for the Tribunal about his credibility.
The two claimed attacks on the applicant amount to his central claims of harm in India. The discrepancies in the applicant’s evidence referred to above about when, where and how the claimed attacks took place raise concerns for the Tribunal about his credibility and the genuineness of his claims more broadly.
Secondly, discrepancies in the applicant’s evidence regarding his claim to have been in hiding raises concerns for the Tribunal about his credibility.
In his protection visa application, the applicant did not mention being in hiding.
In the interview with the delegate, the applicant said that after the second attack his father took him to his uncle’s house and hid him there for a few months. The attackers came there too and his family got scared so they sent him to Australia. The affidavits dated 25 January 2019 provided by the applicant’s father and uncle, referred to in paragraph 7 above, refer to the applicant hiding at his uncle’s house after the second attack and then being sent outside India.
In the first Tribunal hearing, the applicant gave evidence that before coming to Australia he was living in secret with his relatives for two years. He said he used to move between different relatives every five days or so. He said at a different point that he moved around in this way for one to two years before leaving India. At another point in the hearing, the applicant said that after the second attack he lived at his uncle’s place for two to three months and then he started getting problems there and used to move every couple of weeks.
In the first hearing, the Tribunal put to the applicant its concern about discrepancies in his evidence about how long he was in hiding. The applicant responded that the information he gave to the delegate was mainly about establishing his relationship with the Mann party and today he has told the Tribunal the details of what he went through. The Tribunal has listened to the recording of the applicant’s interview with the delegate and does not agree with the applicant’s characterisation of the content of the interview. In any event, the Tribunal does consider that this provides an adequate explanation for the discrepancies in his evidence about the time he spent in hiding and it does not allay the Tribunal’s concerns about his credibility.
In his protection visa application, the applicant did not claim to have been in hiding. In his interview with the delegate, the applicant claimed to have been in hiding for a few months after the second attack (which he claimed took place [in] December 2013) and he then came to Australia. In the first Tribunal hearing the applicant changed his evidence about how long he was in hiding before he came to Australia. At one point, he said he was living in secret for two years. At another point he said he was moving around in secret between relatives for one to two years. He said he moved every five days or so. At another point, he said that after the second attack he lived at his uncle’s place for a couple of months and then had to start moving every couple of weeks.
These discrepancies in the applicant’s evidence between his protection visa application, his interview with the delegate and the Tribunal hearing, as well as the changes in the evidence he gave to the Tribunal about how long he was in hiding, undermine his credibility. Further, the applicant’s evidence to the Tribunal about how long he was in hiding does not make sense in the context of the dates of the claimed attacks. The applicant came to Australia in August 2014. If he had been in hiding for two years before coming to Australia, that is, since August 2012, he would have been in hiding during both the attacks according to the dates he gave the delegate ([in] October 2013 and [December] 2013) and possibly for the first and certainly the second attack according to the dates he gave the Tribunal (August to October 2012 and January 2013). If he had been in hiding for one year before coming to Australia, that is, since August 2013, this again means he would have been in hiding during both the claimed attacks according to the dates he gave the delegate, but it would mean that he did not go into hiding until about six months after the second attack according to the date he gave to the Tribunal (January 2013). The applicant did not claim to the delegate or the Tribunal that he was in hiding at the time of the attacks. Even if the applicant’s evidence to the Tribunal about being in Uttar Pradesh at the time of the second attack is construed as him claiming to have been in hiding at that time, this does not resolve the Tribunal’s concerns about the discrepancies in his evidence regarding when he was in hiding and for how long.
In light of the fact that the applicant provided additional written submissions prior to the second hearing reiterating his claims, the Tribunal put its concerns to the applicant again in the second hearing about discrepancies in his evidence about being in hiding. The Tribunal put to the applicant that in his written submissions dated 24 January 2022, the applicant said he was in hiding for two to three months but in the first Tribunal hearing he had said was in hiding for one to two years before he left India. The applicant responded that the period of two to three months was true. He said there was potentially a misunderstanding and if he said he was in hiding for one to two years before leaving India it is not true and that would have been a mistake. As set out in paragraph 49, the applicant gave evidence in the first hearing that he had been in hiding for one to two years before coming to Australia. The Tribunal does not consider that there was a misunderstanding by the applicant or the Tribunal in relation to that evidence. Along with the Tribunal’s other concerns expressed above about the applicant’s evidence relating to being in hiding and the Tribunal’s broader concerns about the applicant’s credibility, the fact that the applicant agreed in the second hearing that at least some of the evidence he gave in the first hearing about being in hiding was not true raises concerns for the Tribunal about his credibility and the truthfulness of his claims.
Thirdly, in the first Tribunal hearing the applicant made new claims about his parents being in hiding. He said that his parents used to live in their village, [Village 1], but since 2015 they have been changing places and living with relatives. He also said that after the second attack on him his family were all hiding. He said that his family were living with a relative and he was staying with a different relative, and his father was getting threats from Congress and Badal party people.
In his protection visa application, the applicant did not mention his family being in hiding. Nor did he mention this in his interview with the delegate despite having the opportunity to do so. In fact, as noted in the delegate’s decision, in his interview he told the delegate that the police continue to come to his parents’ house every month or two to ask about his whereabouts. In the first Tribunal hearing the applicant also gave evidence that the police continue to come to the village and harass his family and find his whereabouts. As described in paragraph 10 above, the applicant also provided a new affidavit from his father, dated 1 November 2021, in which his father indicates he still lives in the same village, [Village 1], and makes no mention of being in hiding. In fact, his father says in the affidavit that as a farmer, he started supporting the farmers’ protests and he was attacked on the outskirts of his village while returning from a protest event. In the Tribunal’s view, it seems implausible that a person in hiding would continue to live in their own village and support and attend public protest events. The Tribunal’s concerns about the genuineness of this affidavit are discussed in paragraphs 80 to 82 below. For present purposes, the Tribunal notes that the content of the affidavit does not support the applicant’s claim about his parents being in hiding and no longer living in their village.
In the first hearing, the Tribunal put to the applicant its concern that he had not previously raised these claims about his family being in hiding. The applicant responded that in the interview he did mention his family being harassed and his brother was missing but the main information was about the Mann party. Today he has told the Tribunal the details of what he went through. As mentioned above, the Tribunal has listened to the recording of the applicant’s interview with the delegate and does not agree with the applicant’s characterisation of the content of the interview. The Tribunal acknowledges that in the interview the applicant mentioned some problems experienced by his family and referred to his brother’s disappearance, but he did not claim that his family was, or had been, in hiding. The fact that the applicant only raised this claim about his family being in hiding for the first time in the Tribunal hearing, when he had the opportunity to raise it in his interview with the delegate, raises concerns for the Tribunal about its veracity. Further, as mentioned above, the claim that his parents are in hiding and have been for some time does not make sense in the context of other evidence given by the applicant to the delegate and the Tribunal, such as his evidence that the police continue to visit his parents in their village to try to find his whereabouts and the contents of his father’s affidavit dated 1 November 2021.
In light of the fact that the applicant provided additional written submissions prior to the second hearing reiterating his claims, the Tribunal put its concerns to the applicant again in the second hearing about the fact that he only raised his claim about his parents being in hiding for the first time in the Tribunal hearing. The Tribunal also put to the applicant its concern that some of the evidence, such as the affidavit from his father about being attacked while returning to his village from a protest in September 2021 and his claim that the police continue to harass his parents to find his whereabouts, does not support his claim that his parents are in hiding. The applicant responded that in the interview with the delegate he was just focussing on himself and what happened to him and thought that was more important. He said that later, when he had more time with the Tribunal, that is when he mentioned his family’s involvement. He said that when his parents go to their village in hiding there are people who will inform the police that they are there and then the police come and ask people in their neighbourhood about where his parents are hiding. The Tribunal does not accept this explanation. As discussed above, the Tribunal has listened to a recording of the applicant’s interview with the delegate. In the interview, the applicant referred to his family and some of the problems he claimed they had experienced such as being harassed by the police. The Tribunal considers that the applicant had the opportunity in the interview to mention that his parents were in hiding and would have done so if it were true. The Tribunal does not accept that he failed to mention it because he was just focussing on himself or he did not have time to mention it. The Tribunal also considers, as discussed in paragraphs 55 and 56 above, that other evidence given by the applicant about the police continuing to harass his parents in relation to his whereabouts and the affidavit provided by his father about being attacked in September 2021 while returning to his village from a farmers’ protest undermine the applicant’s claim that his parents are in hiding in India.
Accordingly, for the reasons described above, and combined with the Tribunal’s broader concerns about the applicant’s credibility, the Tribunal has doubts about the truthfulness of the applicant’s claims that his parents are, or have been, in hiding.
Fourthly, the applicant’s evidence about his involvement with the Mann party raises concerns for the Tribunal.
In his protection visa application, the applicant claims that he was an active member of the All India Sikh Federation of Punjab.
In his interview with the delegate, he said the All India Sikh Students Federation of Punjab is the student element of the Mann party but he worked for the whole party, which is the Mann party. He said he joined the party on [Date 1] 2012 at an annual Sikh festival and then he worked for them. He put up posters for the party, he served food and attended rallies. The party was going to put him forward as a candidate in the election and he was really famous with the party. He did a good job recruiting people by telling them about the party’s policies. Those policies included being against drugs and illegal activities, organising marriage for poor people, establishing Khalistan and having peace and prosperity. He recruited about 20 people. The applicant said he did not have much to do with the leadership of the party. He was not a leader but he was working with young people and with people in the Sikh Youth Federation.
As mentioned in paragraph 7 above, at the interview with the delegate the applicant provided a letter of support dated [in] January 2019 on Shiromani Akali Dal letterhead purporting to be signed by [a named official] of the Mann party. The letter states that the applicant was a regular and permanent member of the Mann party. It says the applicant’s tasks for the party included distributing flyers, putting up posters for events, assisting participants at rallies, providing food and water services at party events and encouraging others to join the party. The Tribunal has concerns about the genuineness of this document which are set out in paragraphs 72, 73 and 77 below.
In the first Tribunal hearing, the applicant gave evidence that he was an active member of the Mann party. He said he started volunteering in the Students Federation when he was [studying]. He became involved because his father was a member and used to attend rallies and donate money. The applicant showed his support by putting up posters and attending party rallies. He gave evidence that he became a member of the Mann party in late 2010 or early 2011 and became [Official A] of the Mann party in his local area in 2011. He used to do speeches in his school and in his area, at the village level or at party gatherings. He said he was chosen to do this because he was a good speaker. The Tribunal asked the applicant what he would say during these speeches. He stated that his speeches were about the party and the rights of Sikhs as a minority. The Tribunal asked him if he could be more specific. He said motivating people in relation to religion and how people can present themselves according to the law and party policy. If someone has been wronged, how to keep the people non-violent. The Tribunal asked him if there was anything else and he said there was not. He said he gave speeches from mid-2011 until the end of 2012. The Tribunal asked him if he was involved in any other party activities and he said he sometimes did donations to the party but that was all.
In the second hearing, the Tribunal raised as a concern with applicant discrepancies between claims in his protection visa application, documents he provided to the Tribunal, what he said to the delegate and the evidence he gave to the Tribunal about the extent and nature of his involvement in the Mann party, such as when he joined and what activities he was involved in. For example, the Tribunal put to the applicant that he told the delegate he joined the party on [Date 1] 2012 at a Sikh festival, but he told the Tribunal that he joined the party in late 2010 or early 2011. The applicant responded that perhaps there was a misunderstanding by him. He said he joined the party on [Date 1] 2012 and the early dates are him being involved with the Student Federation. The Tribunal does not accept this explanation. The applicant’s evidence to the delegate was very specific about the date he first joined the party ([Date 1] 2012) and he did not mention, for example, having previously been the [Official A] of the Mann party for his local area. The applicant’s evidence to the Tribunal was also specific about when he joined the party. He told the Tribunal that he had initially been a supporter of the party and he became a member in late 2010 or early 2011 and soon after that in 2011 he became [Official A] of the Mann party in his local area. The Tribunal does not accept that there was a misunderstanding by the applicant in that when he gave evidence to the Tribunal about joining the party and becoming [Official A] of the Mann party in his local area he was actually referring to being involved with the Student Federation. In the Tribunal’s view, the discrepancies in the applicant’s evidence to the delegate and the Tribunal about when he joined the Mann party raise concerns about his credibility and the genuineness of his claims.
The Tribunal has further concerns about discrepancies in the applicant’s evidence about what types of party activities he was involved in. For example, the applicant told the delegate that he put up posters for the party, he served food and attended rallies. Later he said he tried to recruit people by telling them about the party. This is broadly consistent with the activities referred to in the letter of support from the [named official] of the Mann party which the applicant provided to the Department. In the first Tribunal hearing, the applicant said he used to put up posters, attend rallies and mainly give speeches to groups of people. He did not mention giving speeches to groups of people in his interview with the delegate despite having the opportunity to do so, but he told the Tribunal that giving speeches on behalf of the party at village or party gatherings of up to 200 people was his main way of showing support for the party. He said he did this from mid-2011 until the end of 2012 when he was attacked.
These discrepancies in the applicant’s evidence about the timing and nature of his involvement with the Mann party, combined with the Tribunal’s broader concerns discussed above about the applicant’s credibility, raise doubts for the Tribunal about the genuineness of the applicant’s claims.
Fifthly, the applicant’s evidence about the fake cases and planting of drugs and weapons by the police raised concerns for the Tribunal.
In his protection visa application, the applicant claims that the police made fake cases on them putting drugs and weapons in their house. He goes on to say that later they arrested him and he had to pay a bribe not to have action taken against him. In the Tribunal’s view, this suggests that these claimed events took place while he was still in India.
In the interview with the delegate, and as referred to in the delegate’s decision, the applicant did not mention his claim about the planting of drugs and weapons until it was raised with him by the delegate. The applicant said that the police put a fake case on him while he was in India and after he left they put drugs and weapons in his family’s house. When the delegate asked him why he did not mention this earlier, the applicant responded ‘I didn’t know this thing.’
In the first hearing, the applicant gave evidence that after the second attack while he was recovering, he approached the police but they told him he should stop his political activities and they filed some fake cases against him. He said they tried to plant weapons in his house and tried to involve him in an illegal weapons case and a drug case as well. He said there was no FIR but the cases are still going on and the police come to the village to harass his family and try to find his whereabouts and get him arrested in Australia but they have not been able to get his details. The Tribunal asked the applicant how the Indian police could get him arrested in Australia and he responded that the political parties have people who can attack someone.
In the second hearing, the Tribunal put to the applicant its concern about discrepancies between his protection visa application claims, what he said to the delegate and the evidence he gave to the Tribunal about the fake cases, including whether it was before or after he left India that the police tried to involve him or his family in cases involving drugs and weapons. The applicant responded that there is no case at all. The police are threatening him and his family to try to get them to withdraw their involvement with the Mann party. The cases are still pending but there is no official FIR. He said the police problems will continue as long as he keeps supporting the Mann party because the police harass opposition party supporters. The Tribunal does not accept this response as an adequate explanation for discrepancies in his evidence. In his protection visa application, the applicant claimed that the police made fake cases against him by putting put drugs and weapons in his house and later he had to pay a bribe to stop the action against him. He did not mention this in his interview with the delegate until prompted and he then said the police put a fake case on him but the drugs and weapons were planted after he left India. In the Tribunal hearing, the applicant gave evidence that the police tried to plant weapons in his house and involve him in an illegal weapons case and drug case and while there is no FIR, these cases are still going on. The Tribunal considers that the planting of drugs and weapons by police in a person’s house is a serious matter and if it truly happened to the applicant and his family then he would not be mistaken about whether it occurred before or after he left India. Along with the Tribunal’s broader concerns about the applicant’s credibility discussed above and the Tribunal’s concerns about his claims relating to his involvement with the Mann party, the Tribunal considers that these discrepancies in the applicant’s evidence about actions taken by the police raise concerns about the truthfulness of his claims. The Tribunal also considers the applicant’s claim that the Indian police are trying to get him arrested in Australia to be implausible.
Sixthly, the Tribunal has a number of concerns about the documents submitted by the applicant in support of his claims.
The Tribunal discussed with the applicant country information[2] that indicates fraudulent documents are easy to obtain in India and explained that the Tribunal has a concern about whether the documents he has provided and their content is genuine. The applicant responded that they are all real documents. The Tribunal does not accept this response as sufficient to allay its concerns about the documents, particularly in light of its concerns discussed above about the applicant’s credibility.
[2] DFAT Country Information Report India, December 2020, 5.65
In addition, the Tribunal raised with the applicant particular concerns about certain documents he provided.
As set out in paragraph 7, the applicant provided a number of affidavits in his interview with the delegate. These affidavits from his father, his uncle, a neighbour and the head of his village relate to the attacks the applicant claims to have suffered and the consequences that followed. The Tribunal put to the applicant that all the affidavits are dated 25 January 2019. They were obtained by him shortly before his interview in 2019 which is a long time after the claimed events took place (2013) and a long time after he lodged his protection visa application in 2016. The Tribunal also put to the applicant its concern about discrepancies between information in some of the affidavits and the evidence he gave to the Tribunal. The applicant responded that the affidavits are from people in touch with his family. At first he did not know what proof he would be asked to give in his case and his lawyer told him he would need proof so he arranged the affidavits. The applicant said that in the interview with the delegate he explained how he was related to [the named official] but in the Tribunal hearing he has explained what he went through at a personal level.
The Tribunal does not accept this explanation. The Tribunal is prepared to accept that the applicant obtained the affidavits after advice from his lawyer, however this does not allay the Tribunal’s concerns about the genuineness or content of the affidavits. The affidavits were provided a long time after the claimed events took place and not long before the applicant’s interview with the delegate and they all have the same date. They are provided in support of events which the applicant did not refer to in his protection visa application form and which he only raised for the first time in his interview with the delegate. As discussed above, the Tribunal has concerns about the applicant’s credibility and the truthfulness of his claims, including the claims which are the subject of these affidavits. The Tribunal’s concerns are strengthened by country information which indicates fraudulent documents are easy to obtain in India. The Tribunal has considered the applicant’s statement that in the interview with the delegate he explained how he was [acquainted with the named official] but in the Tribunal hearing he has explained what he went through at a personal level but does not consider this to be a relevant response to the Tribunal’s concerns about these documents. Accordingly, the Tribunal does not accept the affidavits dated 25 January 2019 as genuine and gives them no weight.
The Tribunal asked the applicant how he obtained the letter of support dated [in] January 2019 that purports to be from the [named official] of the Mann party, which is referred to in paragraph 7 above. The applicant gave evidence that his father arranged it by taking the applicant’s identification card to [the official] and he issued the letter. The Tribunal raised with the applicant its concern about whether [such an official] of a political party would provide a letter like that for a member of the party and that some of the party activities the letter describes the applicant as having been involved in do not match his evidence to the Tribunal. The applicant responded that it is a generic letter for all party members and they don’t mention the actual tasks a party member does. He said the [named official] signs the letter but won’t issue a personal letter for him. The Tribunal does not accept this explanation. The letter clearly purports to be a personal letter for the applicant and refers to him, the activities he supposedly undertook for the party and explains that he had to leave India because he was threatened and harassed by members of the BJP and the Badal party. Combined with the country information which indicates fraudulent documents are easy to obtain and the Tribunal’s broader concerns about the applicant’s credibility, the Tribunal does not accept this document as genuine and gives it no weight.
As set out in paragraph 10, a few days before the first Tribunal hearing the applicant provided some new documents in support of his case. In the hearing, the Tribunal discussed these documents with the applicant and raised concerns about them with him.
The Tribunal asked the applicant about the relevance of the letter dated 1 November 2021 from the President of [Religious Community 1]. The applicant responded that it was just to show that he was active at the Sikh temple and they knew him. The Tribunal does not consider this document to be relevant to the applicant’s claims of harm and gives it no weight.
The Tribunal raised concerns with the applicant about the affidavits dated 1 November 2021 from his father and [Mr A] about the alleged attack on his father on [the specified day in] September 2021. The applicant’s father’s affidavit states that Badal and BJP party workers are still intimidating them and looking for the applicant and threatening to kill him. The affidavit also states that the applicant’s father was stopped and attacked on [that day in] September 2021 by Badal and BJP party people because of his support for the farmers’ protest. The affidavit of [Mr A] states that he saw Badal and BJP party workers beating the applicant’s father and that before leaving, the attackers threatened to kill [the applicant].
The Tribunal expressed concerns about the genuineness of these affidavits in light of discrepancies with the applicant’s evidence in the Tribunal hearing, as well as the other concerns the Tribunal had already mentioned such as the availability of fraudulent documents. For example, the affidavit of the applicant’s father states that he lives in the village of [Village 1], and this is where he was returning to when he was attacked after attending a farmers’ protest. As discussed above, the Tribunal finds this difficult to reconcile with the applicant’s evidence in the Tribunal hearing that his parents no longer live in the village of [Village 1] and move around in hiding with relatives.
The Tribunal also put to the applicant country information which indicates that the Badal party has broken its coalition with the BJP and that the Badal party supports the farmers in their protests[3] and so this might lead the Tribunal to doubt that the applicant’s father was attacked by the people mentioned in the affidavit or for the reason mentioned in the affidavit. The applicant responded that it looks good on paper but the political parties are all the same and it doesn’t matter who they are. The Tribunal does not accept this response. Based on the country information, the Tribunal considers it to be implausible that BJP and Badal party workers would still be working together and threatening people about the farmers’ protests given they are no longer in a political coalition and the Badal party supports the farmers. Further, based on the country information which indicates fraudulent documents are easy to obtain in India and the Tribunal’s broader concerns about the applicant’s credibility, the Tribunal does not accept the affidavits of the applicant’s father and [Mr A] or their contents as genuine and gives them no weight. The Tribunal does not accept that the applicant’s father was attacked on [a specified day in] September 2021, or at any other time, by Badal and BJP party people because of his support for the farmers’ protest or for any other reason.
[3] (accessed 23 December 2021)
In light of its finding that the applicant’s father was not attacked [in] September 2021, country information[4] which indicates fraudulent documents are easy to obtain in India and the Tribunal’s broader concerns about the applicant’s credibility, the Tribunal also does not accept the letter/medical certificate dated 1 November 2021 from [Doctor A] of [Clinic 1] as genuine and gives it no weight.
[4] DFAT Country Information Report India, December 2020, 5.65
As set out in paragraphs 11 and 12, a few days before the second Tribunal hearing the applicant provided further documents in support of his case. In the hearing, the Tribunal discussed these documents with the applicant and raised its concerns about them with him.
The Tribunal asked the applicant about the relevance of his tax return for the financial year ending 30 June 2021. The applicant responded that it was to show he is working and not being a burden on Australia. The Tribunal does not consider this document to be relevant to the applicant’s claims of harm and gives it no weight.
The Tribunal asked the applicant about the witness statement from [Mr B]. The applicant responded that they are from the same city and [Mr B] knows what is going on in India. The applicant said he had been explaining his situation to [Mr B]. The Tribunal asked the applicant whether [Mr B] was someone the applicant had met in Australia. The applicant said that yes, [Mr B] is his boss and he has worked with him for the past four years. The Tribunal asked the applicant whether [Mr B] had any direct knowledge or involvement in what he claims happened to him in India and the applicant said he did not. The Tribunal indicated to the applicant that it had considered [Mr B’s] witness statement and explained that in light of the fact that [Mr B] was not able to provide any independent corroboration of the applicant’s claims about what happened in India, the Tribunal would not be assisted by hearing oral evidence from him. The Tribunal asked the applicant whether he wanted to say anything in response and he indicated that he did not. The Tribunal also indicated to the applicant that it might give [Mr B’s] witness statement little or no weight in assessing the applicant’s claims given the Tribunal’s concerns about the applicant’s credibility. The Tribunal asked the applicant whether he wished to say anything in response and he said he did not. The Tribunal has considered the witness statement of [Mr B] and for the reasons explained above gives it no weight.
The Tribunal asked the applicant whether the disappearance of his brother in 2016 was relevant to his claims. The applicant responded that his brother is missing and nobody knows where he is. The Tribunal does not consider the disappearance of the applicant’s brother to be relevant to the applicant’s claimed fear of harm if he returns to India in the reasonably foreseeable future.
For the reasons set out above, and having considered all of the applicant’s claims and evidence, the Tribunal finds as follows. The Tribunal does not accept the applicant’s central claims which relate to his involvement with the Mann party and the two attacks on him by Badal party and BJP party workers. In light of this, and in light of the Tribunal’s concerns about the applicant’s credibility and truthfulness of his evidence more broadly, the Tribunal also does not accept the applicant’s remaining claims which flow from his central claims.
The Tribunal accepts the applicant was born in [Village 1] village, Punjab state in India. The Tribunal finds that this is where he lived until he came to Australia. The Tribunal finds that the applicant’s parents still live in [Village 1]. The Tribunal accepts that the applicant finished High School in India and that he did not work prior to coming to Australia. The Tribunal accepts that the applicant was a supporter of the Mann party while he lived in India in the sense that he would vote for that party in elections. The Tribunal accepts that the applicant’s family are supporters of the Mann party in the sense that they would vote for that party in elections. The Tribunal accepts that the applicant came to Australia on a Student visa. The Tribunal accepts that the applicant is a Sikh.
The Tribunal does not accept that the applicant was an active member of the All India Sikh Federation of Punjab in India. The Tribunal does not accept that police and politicians did not like his involvement in politics. The Tribunal does not accept that police or politicians made fake cases against him, including putting drugs and weapons in the applicant’s family’s house because they were against his involvement in politics or for any other reason. It follows that the Tribunal does not accept that the police arrested the applicant, or that they took him to the police station to harass and question him, or that he had to pay a bribe not to have action taken against him. The Tribunal does not accept that the case is, or cases are, still pending or that if the applicant returns to India they will reopen it or them. The Tribunal accepts there are no FIRs about these claimed cases because the Tribunal does not accept the applicant’s evidence about the existence of these cases in the first place. The Tribunal does not accept that the police or the applicant’s political opponents keep watching him.
The Tribunal does not accept that the applicant was a member of the Mann party. The Tribunal does not accept that the applicant would put up posters, serve food, attend rallies, recruit new members, make speeches or undertake other claimed activities on behalf of the party. The Tribunal does not accept that he was [Official A] of the Mann party in his local area at any time. The Tribunal does not accept that he was going to stand as a candidate for the party at the election. The Tribunal does not accept that people from the BJP or the Badal party approached the applicant about coming to work for them. The Tribunal does not accept that they threatened to kill the applicant if he didn’t join them. The Tribunal does not accept that the applicant was attacked twice by BJP and Badal party members in 2012 or 2013 before he came to Australia, or that he was attacked at all. The Tribunal does not accept that the applicant hid at his uncle’s house, or at any other relative’s house while he was in India. The Tribunal does not accept that the applicant’s family has been, or is, in hiding in India. The Tribunal does not accept that BJP or Badal party people tried to find him while he was in hiding. The Tribunal does not accept that the applicant’s family were scared for him and that is why they sent him to Australia. The Tribunal does not accept that the police keep coming to his parents’ house about once a month, or at any time, and asking them where he is. The Tribunal does not accept that the police do this at the direction of the Badal and BJP parties, or anyone else. The Tribunal is prepared to accept that the applicant’s father supports the Mann party in elections. The Tribunal does not accept that the applicant’s father has been bashed by the police in 2018 without an FIR and also when he tried to report the applicant’s brother’s disappearance to the police, or at all. The Tribunal does not accept that the applicant’s father was attacked on [a day in] September 2021, or at any other time, by Badal and BJP party people because of his support for the farmers’ protest or for any other reason. The Tribunal also does not accept that Badal and BJP party workers are still intimidating the applicant’s family and looking for the applicant and threatening to kill him. The Tribunal does not accept that the applicant left India in fear of his life or that he fears returning to India for the reasons claimed.
Does the applicant meet the refugee criterion?
In his protection visa application, the applicant claims that if he returns to India the police will reopen the fake cases against him and that he will be arrested or tortured mentally and physically. In the interview with the delegate, the applicant said that if he returns to India his political opponents will kill him or send him to jail for a long time. In the Tribunal hearing, the applicant gave evidence that either he will be killed or put in jail because of his political opponents. Based on the Tribunal’s findings above that the applicant was not involved in the Mann party or politics in the way he claims, that he was not attacked by political opponents, that he did not have fake cases made against him or his claims that flow from these claims, the Tribunal does not accept the applicant’s claims. Therefore, the Tribunal finds that the applicant does not face a real chance of serious harm arising from these circumstances.
As discussed above, the Tribunal has accepted that the applicant was a supporter of the Mann party in India but does not accept his other claims about his political activities. The Tribunal asked the applicant if he would get involved in politics if he returned to India. The applicant responded that he would not because he would get killed. The Tribunal accepts the applicant’s response that he would not get involved in politics if he returned to India, but it does not accept the applicant’s response that this is because he would be killed. Based on the Tribunal’s findings above that the applicant was a supporter of the Mann party, in the sense that he would vote for the party at elections, but that he was not involved in the Mann party or political activities in the way he claims, the Tribunal accepts that the applicant would not become actively involved in politics if he returned to India in the reasonably foreseeable future. Based on those same findings above and the Tribunal’s findings that the applicant was not attacked by political opponents, that he did not have fake cases made against him or his claims that flow from that, the Tribunal does not accept the applicant’s response that he would be killed. The Tribunal discussed with the applicant country information that indicates that the Mann Party is regarded as a fairly marginal political party in Punjab[5] and noted that it did not win any seats in the last Punjab state elections.[6] Further, country information does not indicate that supporters of the Mann party are targeted or harmed for their support of the party. The applicant responded that the Mann party has lots of supporters, there is vote capturing, other parties unite against them and supporters have moved to different countries like Canada and the USA. The Tribunal does not accept this response as relevant. Accordingly, the Tribunal finds that the applicant would not face a real chance of serious harm as a supporter of the Mann party if he returned to India in the reasonably foreseeable future.
[5] (accessed 23 December 2021)
[6] (accessed 23 December 2021)
The Tribunal has considered the applicant’s claim that as a Sikh he would face a risk of persecution if he returned to India, especially if he returned to the Punjab. The Tribunal asked the applicant where he would go if he returned to India. He responded that he would try to go back to his village but his opponents won’t let him. In light of the fact that the Tribunal does not accept the applicant’s claims about what would happen to him if he returned to India, as set out in paragraph 92, or his claims about what happened to him in India due to his political activities, as set out in paragraphs 90 and 91, it does not accept that his claimed political opponents, or anyone else, would not let him return to his village. In light of this, and the Tribunal’s finding that the applicant’s parents still live in his village of [Village 1] in Punjab, the Tribunal finds that if the applicant returns to India in the reasonably foreseeable future he would return to his village in Punjab.
In the second Tribunal hearing, the Tribunal discussed with the applicant country information which indicates that in India in the past, particularly in the 1980s, there was widespread violence and human rights abuses against Sikhs but that is no longer the situation.[7] Country information indicates that Sikhs are the dominant religion in Punjab and can live there safely and that in India more generally, Sikhs face a low level of official societal discrimination and violence.[8] The applicant responded that the situation today is still like in the 1980s but it is not out in the open. The Tribunal put to the applicant that his response is not supported by the country information. The applicant responded that problems do not happen on a large scale but if you open your mouth and say something the same things happen as they used to. The Tribunal asked him whether he meant as a Sikh or as a supporter of the Mann party. The applicant responded that he meant both. The Tribunal reminded the applicant that it had previously discussed with him that country information did not indicate that Mann party supporters are targeted or harmed for their support of the party. The applicant responded that the country information only looks good on paper. The Tribunal put to the applicant that it might find based on the country information that as a Sikh who is not actively involved in politics in India he would not face a real chance of serious harm if he returned to India, and especially Punjab, in the foreseeable future. The applicant responded that his matters relate to the Mann party, the false cases have not come to an end and if he goes back to India he will be arrested.
[7] (accessed 10 January 2022) Canada: Immigration and Refugee Board of Canada, India: Situation of Sikhs outside the state of Punjab, including treatment by authorities; ability of Sikhs to relocate within India, including challenges they may encounter (2009-April 2013), 13 May 2013
[8] DFAT Country Information Report India December 2020 3.62, 3.66, 3.68; endorsed in UK Country policy and information note: Religious minorities and scheduled castes and tribes, India, November 2021, updated 10 December 2021; US Department of State India 2020 International Religious Freedom Report; US Department of State India 2020 Human Rights Report
The Tribunal does not accept the applicant’s response. The applicant has not claimed that what happened to him in India was simply because he is a Sikh. His claims relate to his political activism in support of the Mann party. As discussed above, the Tribunal does not accept these claims. The Tribunal has accepted that the applicant was a supporter of the Mann party in the sense that he would vote for the party and as discussed in paragraph 93, the Tribunal has found that that the applicant would not become actively involved in politics if he returned to India in the reasonably foreseeable future and that he would not face a real chance of serious harm as a supporter of the Mann party if he returned to India in the reasonably foreseeable future. The Tribunal finds that based on the country information, as a Sikh who is not actively involved in politics in India the applicant would not face a real chance of serious harm arising from these circumstances if he returned to India, and in particular Punjab, in the reasonably foreseeable future.
As mentioned in paragraph 7 above, the letter provided by the applicant which purports to be from the [named official] of the Mann party attached a number of articles, letters and reports which refer to the human rights situation of Sikhs in the Punjab and minorities in India more generally. The Tribunal has considered that country information and discussed it with the applicant in the hearing. The Tribunal does not accept that country information for the reasons set out below. First, some of the attachments are documents that refer to international agreements relating to India’s use of nuclear and other weapons. The Tribunal asked the applicant whether they were relevant to his claims. He said they were not. The Tribunal accepts this response. Secondly, some of the documents appear to be copies of newspaper and other articles which are quite old, of poor print quality, difficult to read and it is not possible to verify their source or date. The Tribunal put this to the applicant and indicated that on this basis it was difficult for the Tribunal to take this information into account. The applicant responded that he included them but agreed they were old and hard to read and could not say anything more about it. As the Tribunal is unable to verify the source and content of these documents it does not accept them. Thirdly, there are documents that relate to the situation for Sikhs in the Punjab and refer to some violent incidents that took place in the past. As referred to above, the Tribunal put to the applicant more recent country information that indicates that while there had been widespread violence and human rights abuses against Sikhs in the past that is no longer the situation and Sikhs can live safely in Punjab.[9] The applicant responded that the situation remains the same today but it is not out in the open. The Tribunal does not accept this response as it is not supported by the more recent country information sourced by the Tribunal. Accordingly, the Tribunal does not accept the documents provided by the applicant as relevant to the Tribunal’s assessment of the circumstances of the applicant if he returned to India in the reasonably foreseeable future.
[9] See footnotes 7 and 8 above.
Taking into account the findings set out above and the country information referred to in this decision, 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 reason set out in s 5J(1)(a) of the Act, or for any other reason.
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, or for any other reason. 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?
100. 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).
101. As the ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion,[10] for the same reasons as those set out above, the Tribunal finds that the applicant does not face a real risk of significant harm for any reason. 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. 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).
[10] MIAC v SZQRB [2013] FCAFC 33
Conclusion
102. 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).
103. 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).
104. 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
105. The Tribunal affirms the decision not to grant the applicant a protection visa.
Rachel Da Costa
MemberATTACHMENT - 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.
…
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
Legal Concepts
-
Judicial Review
-
Natural Justice
-
Procedural Fairness
-
Statutory Construction
0
0
0