1907161 (Refugee)

1907161 (Refugee) [2024] AATA 4231 (10 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1907161

COUNTRY OF REFERENCE: India
MEMBER:Mark O'Loughlin
DATE:10 October 2024
PLACE OF DECISION: Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 10 October 2024 at 5:01pm

CATCHWORDS
REFUGEE – protection visa – India – religion – Sikh – imputed political opinion – family connection to Akali Dal Mann party – pressure to join Sikh militants – detention – drug and sex trafficking – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicant in this matter made an application for a protection visa on 16 May 2017.
On 27 February 2019, under s 65 of the Migration Act 1958 (Cth) (the Act), a delegate of the Minister for Home Affairs decided to refuse to grant the applicant a protection visa. The applicant has applied to the Tribunal for review of that decision.
The delegate refused to grant the visa on the basis that they did not accept the applicant’s claims to have suffered or to face relevant harm if he is returned to India.
The applicant, having been invited to do so pursuant to the Act, appeared before the Tribunal on 25 June and 16 July 2024 to give evidence and present arguments.
The Tribunal was assisted by an interpreter in the Hindi language.
The issue in this matter is whether, based on what is accepted of the claims made by the applicant or arising on the evidence, the applicant is a person to whom Australia has protection obligations.
CRITERIA FOR A PROTECTION VISA
The relevant criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). To be eligible for a Protection Visa an applicant must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c) of the Act.
There are definitions of some terms in s36 and in s5 of the Act. The relevant parts of those provisions are attached.
S36(2)(b) and (c) relate only to persons claiming to be members of the same family unit as someone in respect of whom Australia has protection obligations. The applicant does not claim to be such a person and there is no evidence that he is.
The Tribunal finds that the applicant does not satisfy s36(2)(b) or (c).
Therefore, to succeed the applicant must satisfy either:
·s36(2)(a)- the “refugee criterion”, or
·s36(2)(aa)- the “complementary protection criterion”.
S36(2)(a) - REFUGEE CRITERION
Section 36(2)(a) of the Act 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. This is called the “refugee criterion”.
S5H(1)(a) relevantly defines “refugee” as a person who has a nationality and is outside the country of their nationality and who, owing to a well-founded fear of persecution, is unable or unwilling to avail themselves of the protection of that country.
The Tribunal has had regard to the applicant’s identity documents and is satisfied that the applicant is of Indian nationality. Further, the Tribunal is satisfied that the applicant is outside India.
S 5J defines “well-founded fear of persecution”. S 5J(1)(a)(b) and (c) establish prerequisites that must all be satisfied for an applicant to come within the definition. They provide respectively that an applicant will come within the definition if:
·The applicant fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion (“refugee reasons”); and
·There is a real chance that, if the applicant returned to India, he would be persecuted for one or more of the reasons mentioned in paragraph (a), and
·The real chance of persecution relates to all areas of India.
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.
S36(2)(aa) - COMPLEMENTARY PROTECTION CRITERION
If the applicant does not meet the refugee criterion he may still meet the complementary protection criterion set out in S36(2)(aa) of the Act.
To do so the applicant must be a person to whom Australia has protection obligations because, as a necessary and foreseeable consequence of him being removed to India there is a real risk that he will suffer significant harm.
The Act provides a definition of “significant harm” at s36(2A) and some exclusions at (2B).
S36(2A) provides as follows:
(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.
S5(1) defines “cruel or inhuman treatment or punishment” as follows:
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 or the Covenant; or
(d)   arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
S5(1) defines “degrading treatment or punishment as follows:
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.
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.
CLAIMS AND EVIDENCE
Evidence Available to the Department
Application and Submissions
The applicant first set out his claims in a statement dated 11 May 2015 which he lodged with his Protection Visa Application (PVA) on 2 August 2016.
In that statement he claimed to face harm as a Sikh.
He says that Sikhs face harm in the Kanpur area where he grew up due to infiltration by terrorists from Pakistan, Nepal and Jammu Kashmir.
He says his family were connected to the Akali Dal Mann party who had fought for a Sikh homeland and as a result are seen as likely to take up arms with terrorists from Pakistan and Nepal.
His father did not support the party and cut all ties with his relatives. He moved away from Kanpur to avoid his relatives, although the applicant stayed to finish his studies.
Ultimately his father heard that the applicant was being pressured to take up arms training and join the Sikh militants, so he returned to Kanpur to protect him.
His father sent the applicant to New Delhi to work for a company known as [Employer 1]. There were widespread industrial issues with the company, meaning the applicant and many other employees went unpaid, in the applicant’s case for nearly seven months.
He complained to government authorities and politicians but nothing was done for him. He says the police approached him and other employees and warned them to stop complaining or they would be arrested.
The applicant believes his protests were ignored because he is a Sikh.
He and other employees of the company conducted public protests but his radical relatives threatened the employers and the police arrested the applicant and beat him in connection with those threats.
The applicant went to work for another company but the police continued to follow him and they took him in for questioning about his involvement with Sikh terrorism in Kanpur.
The applicant was forced to return to Kanpur because of the police harassment.
He was offered a job by a family friend, working as a [occupation 1]. That work involved travelling to different places in Uttar Pradesh and Jammu Kashmir to deliver goods to customers.
The not long after he started the job the applicant’s new employer asked whether the applicant and his parents would consent to the employer, [Mr A], marrying the applicant’s sister. The applicant was shocked by this suggestion as [Mr A] was much older and already had a girlfriend.
After the applicant told [Mr A] his sister was not interested, there was a cooling of the relationship between [Mr A] and the applicant.
[Mr A] stared sending the applicant to Jammu Kashmir to make deliveries with some of [Mr A’s] men. The applicant did not know what he was delivering and one day he asked a driver, who told him it was drugs.
The driver told him that [Mr A] was involved in both the drug trade and sex trafficking and that he would often send young girls from poor families to work as prostitutes.
The driver warned the applicant that he should remain silent as [Mr A] could have him killed because most of his men were terrorists.
The applicant told his father who wanted the applicant to leave the country as a matter of urgency. His father arranged for both the applicant and his sister to leave the country.
In December 2016 his sister did not return one evening and could not be found. The applicant and his father went to the police who directed him to speak to [Mr A] and refused to take any complaint against him.
His father was so worried he did approach [Mr A] who refused to help unless the applicant’s sister was promised in marriage to him.
The applicant spoke to the same driver who had told him about the drugs. The driver told the applicant that he could find his sister, so the applicant and his father went with him to a brothel in [City 1] where they were able to secure her release by bribery.
The applicant and his sister went to New Delhi and ultimately to Australia where their [Relative A] was living.
His father could not leave India because of his business.
The applicant and his sister decided that staying in Australia permanently and applying for protection visas was the only way they could escape from the Indian police and [Mr A].
He says he could not live in any other part of India because the police could trace him with their agents and falsify a case against him.
He says if he were imprisoned [Mr A] would have him killed in order to safeguard information the applicant holds about [Mr A’s] drug enterprise.
The applicant provided further written submissions dated 8 February 2019 in anticipation of an interview by a representative of the Department of Home Affairs.
In those submissions he says that since he has been in Australia, [Mr A] and the local Indian police have harassed his father. He says [Mr A] has told the police that the applicant was transporting drugs and that his sister was involved in prostitution.
He said that in about March 2018 the neighbours found out about the allegations and also approached his father.
In about May 2018 the police took his father in for questioning about these matters and warned him to be silent about the issues and about [Mr A’s] involvement in them.
He says the police also demanded a payment of 100,000 rupees to [Mr A] as compensation for complaining about him.
The police threatened to plant drugs in the father’s home unless he paid the money they demanded. He says his father paid the money.
He says his father also met with the driver who had helped them find his sister and they agreed not to tell [Mr A] about the driver’s involvement.
The applicant understands that his father is concerned for his own safety as well as the safety of his children.
He said his father believes his children would be vulnerable to being kidnapped and killed if they return to India. He said his father has lost interest in his business in India and both the applicant and his sister have asked their father to leave India.
Departmental Interview
The applicant was interviewed by a representative of the Department on 13 February 2019 with the help of an interpreter in the Punjabi language.
He told the department that he has [specified relatives] in Australia, his sister who is also making a protection visa application and [specified relatives] who are student visa holders.
The applicant said he fears returning to India because:
·The person he was working for was asking him to do wrong things.
·The police would not help him and also wanted to catch him.
·He found out that the goods he was delivering as part of his job included shipments of drugs.
·He got scared and told his father who advised him not to do anything for fear of the Police.
·His father arranged for the applicant to hide until he was able to arrange a visa for him.
The applicant told the representative about the job [Mr A] gave him with [Business 1] doing what he understood to be [work] [in specified] industry.
He said his job involved taking goods across checkpoints throughout India and that he would pass money to the police when he did so.
He said he found out that he was transporting drugs and he went into hiding [in] December 2016.
He said his employer also took his sister away and that they were scared but the police would not assist because of [Mr A’s] connections.
He said the office had 15 or 16 people working in it and that he worked there during December 2016 before he went into hiding.
The applicant was asked about his family’s connection with rebels fighting for a Sikh homeland. He said the cousins on his father’s side are involved and that other people, including the police, believe the applicant’s family are also involved.
He said his uncles and cousins are aligned with the Akali Dal.
He said when he was in college they were searched and discriminated against because they were thought to be aligned with Akali Dal as well. He said he was not harmed.
He spoke about the protest against his employer in 2016 when he was unpaid for 7 months and the police threatened him and others with charges for protesting.
The applicant was asked why he did not apply for a protection visa as soon as he arrived in Australia given that he says he was fleeing India. He said they had intended to apply for a student visa but when they got here friends told them that they didn’t have enough money to do that and suggested they apply for a protection visa instead.
The representative of the department who was conducting the interview advised him that they had done some checks and their results gave rise to credit issues. The representative of the department said their investigations revealed that [Mr A] does run a business called [Business 1], but that it is a very small company and does not have [occupation 1s].
It was also pointed out that the applicant had provided a leave letter from [Business 1] signed by [Mr A]. The representative of the department noted that it seemed unlikely that [Mr A] would have granted the applicant leave if, as the applicant had said, he had fled in fear of [Mr A] without resigning.
The applicant then said he believes the agent he used to apply for the visa had forged the leave application using a notepad the applicant had provided to him.
Evidence before the Tribunal
Pre-hearing submissions
The applicant provided further written submissions dated 23 June 2024 in anticipation of the Tribunal hearing.
In those submissions at the second page he sets out new claims. He says he speaks to his father regularly and has been told that in December 2023 police officers surrounded the family home in India, looking for him, his uncles and his cousins.
They took his father’s passport and documents and claimed his relatives were members of the Babbar Khalsa and All India Sikh Student Federation.
The applicants father said the police accused the family of abducting [Mr A] and said they suspected the applicant was involved.
The police apparently said that if the applicant released [Mr A] they would not take further action against his father. His father told him they did not believe his assurances that the applicant has been in Australia at all relevant times.
His father told the applicant the police had taken him in for interrogation and demanded [amount] rupees for his release. When he got home the rest of the family heard about that and abducted and bashed [some] police officers.
The applicant says his father told him the officers returned documents they had taken from him but told him the Narcotic Control Bureau (NCB) had taken the applicant and his father’s details and the NCB would arrest him if he returned to Australia.
Documentary Evidence
The applicant provided some country information with his original claims in the statement of 11 May 2017.
The items to which he refers relate to Islamic State terrorist attacks in India, an armed attack on a police officer’s home in Jammu and Kashmir, attacks in Uttar Pradesh by ‘anti-national elements’, various other terrorist attacks, attacks against women in the Punjab, Sikh women in the Sikh resistance movement, the prevalence of prostitution in Kashmir, and the activities of Khalistan separatists.
The relevance of those items to the applicant’s claims is not clear.
Evidence before the Tribunal
Hearing
In his testimony the applicant confirmed that he had come to Australia on a Tourist visa and that the Protection Visa application had been filled out for him by a friend of his [Relative A’s]. He said the statement dated 11 May 2017 where he first set out his claims was drawn with [this relative’s] help as his English was better than the applicant’s.
He said his first job was the one his father arranged for him with a company called [Employer 1]. He said he worked for them for a couple of years, starting in 2010. He then said he believes he finished in 2016. Then he said he changed jobs a couple of times. Then he said he started working at [Employer 1] in 2010 or 2011, then left, then rejoined.
He said he could not remember when he joined the second time but that he was only there for about a year. He said that he left after the protests when he had not been paid for 7 months.
His next job was the one he got from [Mr A].
The applicant said he and [Mr A] were in contact as he had known [Mr A] since he was a child. [Mr A] knew about his troubles and offered him a job as a [occupation 1] in his company in New Delhi.
He said the job was really courier work and he later discovered the business was built on drug and sex trafficking.
He said he found out that he was delivering drugs after he had been doing the work for about 2 months.
He said there was another complication because [Mr A] asked about marrying his sister after the applicant had been working for him for about a month.
He said when his family refused [Mr A’s] offer of marriage, [Mr A] didn’t sack him but he did start sending him on more drug consignments.

He said most of the trips were to the Punjab and to J and K.
The applicant said he found out that the goods he was delivering were drugs before the family rejected the marriage offer. He said he continued to work for [Mr A] for a few weeks after he found out that he was delivering drugs.
The applicant then said he stopped working for [Mr A] after he and his father recovered his sister and they went into hiding in New Delhi.
He said he believes he found his sister towards the end of January 2017 and came to Australia [in] March 2017.
The Tribunal asked the applicant what [Mr A] does now. The applicant said he understands [Mr A] has disappeared. He believes he owed some money and was abducted.

100. He said he now fears the police will believe he is responsible for [Mr A’s] disappearance because they know that he and [Mr A] were associated and because he fled the country.
101. He confirmed that [Mr A] went missing in late 2023.
102. The Tribunal noted that the applicant had been in Australia for more than 6 years at the time [Mr A] went missing. The applicant then said he does not know when [Mr A] went missing, just that he has been abducted. He said he knows that because his father told him so.
103. The Tribunal asked about the circumstances of the applicant leaving his job with [Mr A].
104. The applicant agreed he had started in the month of December 2016 and his sister was abducted at the start of January 2017. She was gone a few days before they recovered her.
105. He agreed that he left the job in February 2017, about a month after his sister had been abducted.
106. He then said after he and his father had recovered his sister [Mr A] was looking for him. He agreed that [Mr A] was looking for him after he stopped working for him.
107. He then said he continued to work for [Mr A] for two or three weeks after his sister had been abducted.
108. He then said he had continued to work for [Mr A] for a week or two after he had recovered his sister.
109. The Tribunal asked why, if [Mr A] has disappeared, the applicant thinks he still has influence with the police in India.
110. The applicant said because the police surrounded his family home in December 2023. He understands that the police said they believe his father or his cousins have [Mr A].
111. He said the police interrogated his father and demanded that he pay them money but he refused and then the applicant’s cousins abducted and bashed the police.
112. He said the police told his father that they had given the applicant’s name to the Narcotics Control Board, andt that the NCB would arrest the applicant if he returned to India.
113. He said the NCB are a different branch to the ordinary police. He said they are trying to shut down everyone who is involved with terrorism and drugs, which are linked.
114. He said he does not know whether his cousins are involved with the drug trade.
115. He believes the NCB would file false charges against him because they know he was working for [Mr A] and because his cousins are terrorists.
116. He claims his father told him police surrounded his family home in December 2023. They allege he is associated with his cousins who the police believe may be terrorists.
117. He says his father told him the police believe he is associated with [Mr A’s] abduction, even though that was in December 2023 when he had been in Australia for some time.
118. He says his father told him that his cousins said [Mr A] was abducted because he failed to pay money to Babbar Khalsa, a militant Sikh nationalist organisation.
119. The Tribunal asked whether the NCB had become involved. The applicant said he did not believe his father had met with the NCB.
120. The Tribunal pointed out that the submissions of 23 June say his father had claimed to have met NCB representatives and that this evidence was inconsistent with that statement. The applicant apologised and said he had been confused.
121. The Tribunal reminded the applicant that it had taken some time to explain that he should not say things he was not sure of. The applicant apologised.
122. The Tribunal asked the applicant to explain what harm he had suffered due to his cousins being terrorists. The applicant said he was treated as though he was also a terrorist and was sidelined and suffered discrimination. The Tribunal asked him to give an example. The applicant said he was never treated as a human, always an animal.
123. The Tribunal again asked for an example. The applicant said that once when he went to the police to file a complaint he had to sit for the whole day and no complaint was taken. He said the complaint was about being treated like a person of a scheduled caste and being sidelined.
124. He said that was in about 2004,5 or 6 when he was very young.
125. He also said that as a Sikh people never looked at him normally.
126. The applicant’s evidence about this was unconvincing.
127. The applicant said in 2015 or 16 when he tried to complain to the police about his former employer, [Employer 1], the police in New Delhi would not take a complaint from him because they believed he was linked to his cousins. The applicant claimed they made that assumption because of his Sikh religion. He could not explain that further. He also said he believed the company associated him with his cousins.
128. Ultimately, he said all the protesters were treated the same way.
129. The Tribunal asked the applicant about the job [Mr A] gave him working for [Business 1]. The applicant said he did not realise at the time, but he was not really working for [Business 1]. He was working for the related criminal business.
130. He said he got a letter of offer of work from [Business 1] and that he accepted that offer but was not doing work for them. He said he was paid but he does not know whether the payment was made by [Business 1] or by [Mr A].
131. He then said he was paid by [Mr A].
132. Then he said the payment was made by direct deposit to his bank account and he never checked who made the payment.
133. The Tribunal noted that the applicant had not tried to get evidence from anyone to support his story.
134. The applicant said he could provide more evidence and that he would ask his father and his wife.
135. The Tribunal asked how long it would take him to obtain that evidence. He said two or three weeks. He was given three weeks.
Post Hearing Submissions
136. On 4 August 2024 the applicant provided further submissions including some country information.
137. The applicant did not provide any evidence from his father or his wife nor did his submissions suggest he had spoken to them as he indicated he would do.
138. The submissions of 4 August essentially repeat some of the claims he made about [Mr A], the Indian police, his cousins, his work in India, and the risks he faces because he is a Sikh.
139. The submissions refer to a range of country information without specifying how that information relates to the applicant or his claims.
140. The Tribunal accepts that prostitution may be regarded as legal in Kashmir and that there have been protests involving Sikh farmers in Uttar Pradesh and elsewhere.
141. The country information is unhelpful in considering the applicant’s claims.
142. The applicant also provided a reference from his Australian employer dated 9 September 2024. It is not relevant to the applicant’s claims and does not assist the Tribunal.
Consideration and Findings
143. The applicant’s claims are wide ranging and intertwined.
[Mr A]
144. He claims to fear [Mr A], his former employer, who he says misled him into working as a drug courier for a short time and who now wishes to silence him because he knows too much about [Mr A’s] drug business.
145. He also fears [Mr A] because [Mr A] knows the applicant thwarted his plans to marry the applicant’s sister.
146. The applicant’s testimony about his fear of [Mr A] included assertions that:
·The applicant had accepted an offer of employment from [Business 1], [Mr A’s] company.
·The applicant does not know whether [Mr A] or [Business 1] paid him because he was paid by direct transfer and did not check.
·After he had been working at [Business 1] for about a month [Mr A] asked to marry the applicant’s sister.
·The family refused and [Mr A] started sending the applicant on more frequent drug consignments.
·He found out he was delivering drugs before the family rejected the marriage offer.
·He found out he was delivering drugs when he was told so by a coworker.
·At about the same time as he was told about the drugs, the applicant and his father had to go to [City 1] to rescue his sister from a brothel where [Mr A] had secreted her, having kidnapped her.
·That after his sister had been abducted, he continued to work for [Mr A] for two or three weeks until he could escape.
·He had rescued his sister within a few days of her disappearing.
·That he did not return to work for [Mr A] after he had rescued his sister because [Mr A] knew what he had done. He went with his sister to hide in New Delhi until they could get away to Australia.
·That he continued to work for [Mr A] for a week or two after his sister had been rescued.
·That [Mr A] vanished nearly a year ago and is thought to have owed money to a terrorist organisation that deals in drugs.

147. The Tribunal notes that the applicant’s evidence about his employment with [Mr A] is inconsistent in relation to when he found out he was delivering drugs, when he rescued his sister, and how long he continued to work for [Mr A] after he had rescued his sister.
148. The Tribunal further notes that the applicant believes [Mr A] disappeared nearly a year ago.
149. The Tribunal does not accept that the applicant faces any harm, including either serious or significant harm as contemplated by the Act, at the hands of [Mr A] if he is returned to India.
Police and the NCB
150. The applicant claims to fear harm at the hands of the police if he returns to India because he had been involved in protests when he was an employee of [Employer 1].
151. He does not describe any risk or chance of harm by reason of this protest, although he says he was threatened by the police in the past. He says he discontinued his protest and was not threatened again.
152. There is no suggestion the applicant would resume those protests if he returned to India.
153. The Tribunal does not accept the applicant faces relevant harm at the hands of the police due to his involvement in protests against [Employer 1] if he returns to India.
154. The applicant claims to fear harm at the hands of the police in his home region because they were in league with [Mr A] and his criminal enterprise. He believes they will harass him and will fabricate charges against him.
155. He claims the local police believe him to be responsible for [Mr A’s] disappearance despite the fact that he had been in Australia for some years before [Mr A] disappeared.
156. He claims that his father told him that the local police have been harassing him and have told him the applicant is at risk of arrest and harm should the applicant return to India.
157. The applicant also gave evidence that his father told him the NCB associate the applicant with terrorism because of his cousins and with [Mr A’s] drug network.
158. The Tribunal made it clear it had difficulty accepting the applicant’s uncorroborated evidence about these matters.
159. The applicant sought and was given the opportunity to obtain clarification or supporting evidence from his father and his wife. He did not provide any such evidence or clarification.
160. The Tribunal does not accept the applicant’s evidence he faces any harm, and in particular serious or significant harm as contemplated by the Act, at the hands of the local police or the NCB if he is returned to India.
Harm as a Sikh
161. The applicant claims to face relevant harm because of his Sikh religion.
162. He said he believes that Sikhs are associated with terrorism in the minds of many of the Hindu majority because of the actions of separatists.
163. His claims to have experienced harm in the past were unclear, although he did assert he had been blocked from making a complaint to the police in about 2006 and that he believes that that was because the police were anti-Sikh. He also claims that people in India think of him as less than human because he is a Sikh.
164. He cites various incidents of violence against Sikhs in India in support of his fears. The Tribunal accepts that such incidents have occurred.
165. The Tribunal has considered the relevant DFAT report[1]. The report considers the situation facing Sikhs in India at 3.60. It notes that there are Sikhs all over the country.
[1] DFAT Country Information Report India 29 September 2023.
166. The report says Sikhs generally face a low level of official and societal discrimination and that even outside the Punjab, where they are a majority, DFAT is not aware of Sikhs being subjected to violence or discrimination[2].
[2] Ibid. p.3.63.
167. The report also deals with Sikh separatists at 3.94 and following.
168. At 3.96 the report says that ordinary residents of Punjab view the separatist movement as being more commonly discussed amongst the diaspora than in Punjab. The Tribunal observes that the applicant is a member of that diaspora.
169. The overall assessment, at 3.102 is that violence among supporters of separatism is possible but still unlikely for most residents of Punjab.
170. There is nothing in the report to suggest it is likely to affect residents of other parts of India.
171. The Tribunal does not accept the applicant faces a real risk or a real chance of harm of any kind by reason of his Sikh religion if he is returned to India.
Association with his Cousins
172. The applicant claims to face relevant harm because his uncles and cousins are associated with Sikh separatists and terrorists even though he has actively avoided any such association.
173. He says his father has always been opposed to their politics and moved the applicant to New Delhi to avoid their influence.
174. The Tribunal notes that the applicant claims the police told his father that they associate the applicant with terrorism and the drug trade because of his cousins. The Tribunal does not accept the applicant faces relevant harm at the hands of the police.
175. The Tribunal does not accept the applicant has suffered harm of any kind in the past because of his cousins.
176. The Tribunal is not satisfied the applicant will face relevant harm because of his cousins if he is returned to India.
Conclusion re Refugee Criterion
177. The Tribunal has considered all the evidence and claims provided by the applicant and is not satisfied the applicant faces persecution that involves serious harm and does not therefore have a ‘well-founded fear of persecution’ because of the effect of S5J (4)(b) of the Act.
178. Therefore the applicant does not meet the definition of “refugee” in 5H(1) and does not come within S36(2)(a).
Complementary Protection Criterion
179. The Tribunal has considered the applicant’s claims and evidence and is not satisfied he faces any form of harm if he is returned to India.
180. The Tribunal has considered the definition of ‘significant harm’ in S 36(2A) of the Act and for the same reasons as let it to conclude he does not face serious harm, finds the applicant does not face significant harm if he is returned to India.
181. The Tribunal finds the applicant does not satisfy the complementary protection criterion and does not come within S 36(2)(aa).
Conclusions
182. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
The Tribunal has found that the applicant does not satisfy 36(2)(b) or (c) 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.

185. Accordingly, the applicant does not satisfy any of the criteria in s 36(2).
DECISION
186. The Tribunal affirms the decision not to grant the applicant a protection visa.
Mark O'Loughlin

Member
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…

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

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

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

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

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

5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

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

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

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

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

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

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

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

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

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

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

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

[2024] AATA 4231

10 October 2024

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

Natural Justice

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