1908519 (Refugee)

1908519 (Refugee) [2020] AATA 4855 (9 September 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1908519

COUNTRY OF REFERENCE: India
MEMBER:Peter Booth
DATE:9 September 2020
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 09 September 2020 at 10:15am
CATCHWORDS
REFUGEE – protection visa – India – political opinion – Khalistan movement – religion – Sikh – threats from lawyer – false legal case – fear of arrest – physical injuries from police – state protection – delay in applying for a protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 423
Migration Regulations 1994, Schedule 2
CASES
Kavan v MIMA [2000] FCA 370
Subramanium v MIMA (1998) VG310 of 1997
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51
Zhang v RRT & Anor [1997] FCA 423
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 March 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 24 October 2018. The delegate refused to grant the visa on the basis that the applicant did not meet the criteria in s.36(2)(a) or s.36(2)(aa) of the Act.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994. 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) of the Act. 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) of the Act, 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-5LA of the Act, which are extracted in the attachment to this decision.
When a person claims to fear being persecuted for reasons of their membership of a particular social group, the existence of such a group and the person’s membership of it is to be determined in accordance with s.5L of the Act. It provides that a person is to be a treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or must distinguish the group from society.
A family is capable of constituting a particular social group for the purposes of s.5J(1) of the Act. However, this is subject to s.5K, which provides that, in determining whether a person has a well-founded fear of being persecuted for reasons of membership of a particular social group that consists of the person’s family, the Tribunal must disregard:
(a) any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has experienced, where the reason for the fear or persecution is not a reason mentioned in s.5J(1)(a); and
(b) any fear of persecution, or any persecution, that the applicant or 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 (a) above had never existed.
Therefore, a person who is pursued because he or she is a relative of a person targeted for a reason other than those specified in s.5J(1)(a) (race, religion, nationality, membership of a particular social group, political opinion) will not have a well-founded fear of being persecuted within the meaning of s.5J of the Act.
A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s.5J(2). Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection.
A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s.5LA(2).
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.
Under s.36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm. The Tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.
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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the criteria set out in either s.36(2)(a) or s.36(2)(aa). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The facts are taken from the applicant’s protection visa application.
Application for review
This is an application for review of a decision made by a delegate of the Minister for Immigration on 14 March 2019 to refuse to grant the visa applicant a Protection (Class XA) Subclass 866 visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 24 October 2018.
Identity and country of reference
The applicant is [an age]-year-old male, born on [date] in [ City 1 in] Punjab, India.
The applicant can speak, read and write Punjabi and English.
The applicant states that he is of Indian ethnicity and of Sikh faith.
The applicant claims to have Indian citizenship by birth and a copy of the applicant’s passport, held upon the Department file, confirms that he is a citizen of India.[1]
[1] Passport, Department file [number]
The applicant stated that he was married.
The applicant recorded former employment in Australia, as [an occupation 1], in his protection visa application. The applicant provided details about having completed high school in India.
In summary, the applicant claimed that he cannot return to India due to the fact that he has been sued by a lawyer who was assaulted by the applicant’s friends in the applicant’s presence.
Migration history
- 3 April 2007 Applied for a TU-573 visa (dependant applicant)
- 07 May 2007 TU-573 visa granted
- [May] 2007 Arrived in A/a and immigration cleared
- 13 December 2009 Applied for a VC-487 visa (dependant applicant) (WA-010 granted)
- 10 December 2012 WB-020 visa granted
- [January] 2013 Departed A/a
- [February] 2013 Arrived in A/a and immigration cleared
- 03 June 2014 WB-020 visa granted
- 03 November 2014 VC-487 visa refused
- 21 November 2014 VC-487 visa refused- appeal commenced
- 24 June 2015 VC-487 visa refused- appeal outcome affirmed
- 22 July 2015 VC-487 visa refused- FCC appeal commenced
- 24 March 2017 VC-487 visa refused- FCC appeal outcome- Minister successful
- 21 April 2017 VC-487 visa refused- FFC appeal commenced
- 27 November 2017 VC-487 visa refused- FFC appeal outcome-Minister successful
- 28 December 2017 WE-050 visa granted
- 10 January 2018 Applied for an XA-866 visa
- 11 January 2018 WE-050 visa granted
- 26 September2018 XA-866 invalid as no claims on form
- 24 October 2018 Applied for an XA-866 visa.
CLAIMS
866 Visa Application
The applicant’s claims for protection are contained in his protection visa application. No Department interview was offered.
Provide reasons why this applicant left that country or those countries:
Applicant left from india on a spousal visa. He was hanging out with his friends mid march 2007. Applicant does not drink alcohol but his friends do and that night his friends had consumed a lot of alcohol and were considered fully drunk. At approximately 1:00 AM. There was a lawyer walking down the road. His drunk friends thought of the man walking as a weak target and tried to pick on him. Since the man was a lawyer he shouted ‘i am a lawyer if you mess with me i will have you guys taken into jail’ and his friends got angry and violently slapped and pushed the lawyer. [The applicant] tried to stop them. His intentions were to not get involved into any of this drama but later onwards the lawyer sued everyone including [the applicant] while [he] was in Australia.
Did this applicant experience harm in that country or those countries?
Yes
Give details including:
• the type of harm this applicant experienced
• the person/people responsible for the harm
• why they harmed this applicant.
Applicant did not experience any harm but was paranoid that he might face adversity if he stayed in india and did not move to australia or a diffrent country.
Did this applicant seek help within the country or those countries after the harm?
Yes.
Give details including:
• the name of the person/organisation/authorities this applicant asked for help
• what help they provided, if they helped
No. He believed if he asked for help he would not recieve any assistance.
Did this applicant move, or try to move, to another part of that country or those countries to seek safety?
No.
Give details for why this applicant did not try to move to another part of the country or those countries.
He did not try to move to any other country because he was granted his spousal visa at that particular point of time.
Explain what the applicant thinks will happen to them if they return to that country or those countries:
Applicant fears that he might be taken to jail if he returns back to india and be kept in jail for something he did not do.
Does this applicant think they will be harmed or mistreated if they return to that country or countries?
Yes.
Give details including:
• the type of harm or mistreatment this applicant is likely to experience
• the person/people who would be responsible for the harm or mistreatment
• why they would harm or mistreat this applicant.
Applicant fears that he might be taken to jail if he returned and fears that his family would not accept his as their family member if they ever found out he was taken to jail and also would lose his friends.
Does this applicant think the authorities of that country or those countries can and will protect this applicant if they go back?
No.
Give details about why this applicant thinks the authorities could not, or would not, protect them.
Applicant does not know if the Authorities would help the applicant or not.
Does this applicant think they would be able to relocate within that country or those countries to an area where they would not be harmed?
Yes.
Give details as to where this applicant could relocate
He could relocate to a diffrent state in india but wishes not to do so since he does not know anyone from another state and it would be like starting life from scratch for him.
Evidence and submissions
The applicant has not provided any written submissions to the Tribunal or Department.
The applicant gave evidence at the hearing, with the assistance of a translator, the substance of which was as follows.
The applicant confirmed his personal details as set out above.
The applicant confirmed that, in summary, the basis for his claim for protection in Australia was that he cannot return to India because he had been sued by a lawyer who was assaulted by the applicant’s friends in the applicant’s presence.
The applicant was asked whether he had any other basis for claiming protection in Australia. He said ‘in Punjab I am a part of a Khalistan movement and I believe in India it is not good for minorities, I believe that they can put any false case on the and throw me into the jail, I am a Sikh and in my country I am fighting for a separate state and that is my main reason’ . He did not elaborate.
The Tribunal observed that the applicant had a lengthy visa history in Australia, which was confirmed by the applicant. The Tribunal informed the applicant that the details of his visa history came from the delegate’s decision dated 14 March 2019. The applicant confirmed that he had a copy of that document.
The Tribunal asked the applicant why he had left India and came to Australia. The applicant said ‘I came here for better future, I came here once with my son and wife, one son was born here, I was working, now waiting for my case, I do not want to leave Australia and go back’. He did not elaborate.
The Tribunal asked the applicant why he had sought protection in Australia. He responded ‘I fear that my safety if I go back there, I am about to have a dispute with a lawyer, anyone who believes in Khalistan movement, will be thrown in prison, I will be picked upon from the airport, I have been in Australia for 17 years’. He did not elaborate.
The Tribunal invited the applicant to elaborate upon this response. The applicant said ‘in Australia I feel safe, like it here, I want to live here, I cannot go back, I will kill myself or you can do it’. He did not elaborate.
The Tribunal observed that the applicant had mentioned his involvement in the ‘Khalistan movement’ as a reason for seeking protection in Australia and invited the applicant to expand upon it. The applicant said:
in 1984 there was an attack on Golden Temple, by the Indian government, the Prime Minister of that time, I was [age] years old, I remember everything, to take revenge I became part of that movement, I participated in their activities, police around the area know me, later the Prime Minister was assassinated, in 1984 to 1995 the movement was very active until the Chief Minister was killed, in 2007 I have been associated with activist, Simranjeet Maan, and participated in all his movements and make other people join the party, currently referendum 2020 has been started in UK for Khalistan and rights, to stop that pressure and efforts have been in place by Indian government, Sikhs are not targeted individually but when you talk about that then the government tried to suppress and stop you.
The Tribunal asked the applicant if he could to explain his involvement in the ‘Khalistan movement’. He said ‘I did everything that was required, taking part in the rally, gathering and educating people, distributing pamphlets, I spent most of my time with Simranjeet Maan and his party, that was one of the reasons for the fight with the lawyer in the court, I had been arrested by the police two or three times without any reason, kept there’.
The Tribunal asked the applicant when he had conducted these activities. The applicant responded ‘when I had time, from 1990 to 1995 that was the main struggle time, we were ready all the time, did not stay at our home, police new who people who were active were, they would target them’.
The Tribunal asked whether he had been harmed or threatened with harm as a result of his involvement with the ‘Khalistan movement’. In reply the applicant said ‘once I was captured by police and kept at [a named] police station, and they tortured me, gave me third-degree torture, on my whole body, I used my links and sources to get away from them, they can kill anyone at any time, it is still going, now little changed, now a referendum’.
When asked when this incident occurred the applicant said ‘in 1998’. He did not elaborate.
When asked whom had assaulted the applicant he said ‘in the police station, four or five people including inspector’.
When asked why he had been arrested the applicant said ‘they raided my house, I was at my house, they took me to police station, some people try to stop our activities, they complained to police, based on that police raided my house and picked me’.
The Tribunal asked the applicant whether he had reported this incident to the police. He replied ‘no one listened to us, we tried to approach the director general of police, but they did not like us to reach out to him, the police did not let us go to them, luckily I knew one police man, he used his sources and took us out’.
The Tribunal enquired whether the applicant had sought medical attention as a result of being assaulted by the police. The applicant replied ‘yes’. He did not elaborate. When invited to give some details he said ‘yes they tortured us, and kept us there for two days, they gave us treatment inside, when released, I consulted local doctor, he gave us treatment, I was not able to walk for some days’. When asked whether he could produce any medical evidence to support this assertion he said ‘I can ask them’. The Tribunal pointed out that the applicant had ample time to have prepared his case and produce documents to which he said ‘I did not know that it would go to this deep’.

The Tribunal asked the applicant why his involvement in the ‘Khalistan movement’ had not been mentioned in his written application for protection. The applicant replied ‘I don’t know but I told them all details’. He did not elaborate.
The Tribunal enquired whether the applicant had been harmed or threatened with harm when he returned to India in January 2013. The applicant responded ‘I went there to attend my niece’s wedding, I did not go to my city, and just went back for my niece’s wedding, I went there for one day, not much people were aware of my presence over there’. He did not elaborate.
Tribunal enquired whether the applicant’s involvement in the ‘Khalistan movement’ in India was a reason why he had left India and made a claim for protection in Australia. The applicant said, ‘in 2007 during that time, the movement was not that active, I came to Australia from a better future, but because of my record, I’m not able to get a good job so came here for better future, the movement is still going on’. He did not elaborate.
The Tribunal asked the applicant why he had waited until September 2018 to make a claim for protection. He said ‘I came here because I was dependent on my wife, all cases mentioned were put forward by my wife, when all expired, the wife and kids went back, I did not want to go back, I felt threatened, my son is a citizen here, my wife and other son’.
The Tribunal asked why the applicant had waited 11 years after arriving in Australia to make an application for protection in Australia. He said ‘because I had visas at the time, I thought we did not need, if she had been successful in getting permanent residency I would have got automatically’.
The Tribunal asked the applicant whether he had only made that the application for protection after his wife’s application for permanent residency had been refused. The applicant’s response was ‘yes’.
The Tribunal asked the applicant whether he had anything else to say about his reasons why he sought protection in Australia. He said ‘the main reason was the involvement with the Khalistan movement and my dispute with the lawyer’.
The Tribunal observed that whilst he had mentioned a dispute with a lawyer he had not explained it in his oral evidence and that it was up to the applicant to explain the relevance of such a reference. The applicant’s answer was ‘I told them at the desk’. When the question was repeated the applicant said ‘I have explained about the movement, I don’t feel safe in India, I have been here for the last 13 years’. The Tribunal observed that the written application for protection contained claims about a lawyer, an assault, and about the applicant being sued. The Tribunal observed that the applicant had been asked on two occasions to give details of that matter and asked whether he wanted to provide any evidence of it. The applicant responded ‘it yes the case on me, a dispute, still going on, I’ve submitted everything on that, because of the fight in dispute, we took to another court, the case went on for a long time, I might still be on a wanted list’. He did not elaborate.
The applicant was asked whether he believed that he would be harmed or threatened with home if he were to return to India. He said ‘yes, 100%, they might be waiting for me to return, my friend said don’t return’.
The Tribunal asked the applicant whom he believed would harm him. He said ‘a lawyer from the party, they can inform police, the Hindu people can inform’.
When asked whether there was any reason why he could not relocate within India if he was to return the applicant said ‘I cannot live anywhere other than the Punjab, I cannot relocate, it is difficult’.
When asked when his wife and son had returned to India the applicant said ‘September 2018’.
When asked what courses of study the applicant had completed in Australia he said ‘my wife did diploma of [subject], my kids also study’. When the question was repeated he said ‘I did not do any study here’.
When asked whether he had been or is currently employed in Australia, the applicant said ‘not now, but before, until 2018 I did [a specified] job and [occupation 1]’. When asked the period during which he had been employed in Australia he said ‘I work from 2007 to 2018’.
When asked how he was supporting himself he said ‘savings or friends who can help or my [relative] in [Country 1]’.
The Tribunal proceeded to broadly paraphrase country information relevant to the issues at hand and invited the applicant to comment. As to internal relocation said ‘yes freedom is there, but difficult, we are in Punjab, difficult to survive outside’; on the topic of police he said ‘not little but a great extent, different treatment for Sikhs, not protected in own state’; on the topic of the judiciary he said ‘what is in book is only a book, but reality is totally different to that’; on the topic of Sikh separatists he said ‘it is happening in India, not only with Sikhs but with Christians and Muslims, these things happen with all’.
The applicant declined an opportunity to add anything further to his application for review.
The Tribunal finds that the applicant:
1. is [an age]-year-old male, born on [date] in [City 1 in] Punjab, India.
b.can speak, read and write Punjabi and English;
c.is of Indian ethnicity and belongs to the Sikh faith;
d.is an Indian citizen and holds a current Indian passport; and
e.is unmarried.
The country information
The DFAT report titled ‘Country Information India’ dated 17 October 2018 relevantly states as follows (footnotes omitted):
Sikhs
3.6    Sikhism is a monotheistic religion founded in the Punjab region (now part of both India and Pakistan) in the 15th century. Sikhs consider themselves disciples of the Ten Gurus, beginning with Guru Nanak (1469-1539) and ending with Gobind Singh (1666-1708). According to the 2011 census, the Sikh population of India was approximately 19 million, 1.7 per cent of the total population at that time. Most Sikhs (75 per cent) live in Punjab, where they comprise around 55 per cent of the population.
3.7    One of the points of difference between Sikh groups is the extent to which they support the creation of an independent Sikh state known as ‘Khalistan’. The 1966 creation of the Punjabi-speaking Sikh majority state of Punjab went some way to addressing these demands. During an internal struggle within the Sikh community in 1982, separatist leader Jarnail Singh Bhindranwale and his followers moved into the Golden Temple complex in Amritsar. In June 1984. The Indian government ordered the army to eject Bhindranwale and his followers from the complex in an offensive known as ‘Operation Blue Star’. The army bombarded the Golden Temple complex, inflicting serious damage. Bhindranwale and many of his supporters were killed during the operation.
3.8    In retaliation for Operation Blue Star, two of then-Prime Minister Indira Gandhi’s Sikh bodyguards assassinated her at her home in New Delhi in October 1984. In the days that followed, mobs seeking revenge for the assassination attacked Sikh homes and businesses, including in New Delhi. Approximately 3,000 people, mostly Sikhs, were killed in the violence. Security forces carried out further operations to suppress Sikh separatism during the late 1980s, during which allegations emerged of torture, extrajudicial killings and deaths in custody carried out by security forces.
3.9    Sources agree that, since the late 1980s and early 1990s, Sikhs have lived peacefully in India and the majority of Sikhs do not experience societal discrimination or violence. Sikhs who advocate for an independent ‘Khalistan’ may be subject to attention by authorities. DFAT assesses that Sikhs in India generally face a low level of official and societal violence and discrimination.
STATE PROTECTION
5.1 Under the Constitution, the states and union territories have primary responsibility for maintaining law and order. The Constitution also empowers the central government to intervene in some situations and perform some functions in police matters. The Ministry of Home Affairs is responsible for the internal security of the country as a whole. It oversees the recruitment and management of the national Indian Police Service and Central Police Organisations, coordinates the activities of various state police organisations, and provides financial assistance to state police forces.
Military
5.2      The Indian Armed Forces consist of four professional uniformed services: the Indian Army, Indian Navy, Indian Air Force and Indian Coast Guard. In addition, the Indian Armed Forces are supported by two paramilitary organisations, the Assam Rifles and the Special Frontier Force, and various inter-service institutions, such as the Strategic Forces Command. The Ministry of Defence oversees the Indian Armed Forces, and their supreme commander is the President of India. The Indian Armed Forces are well regarded by the Indian population.
Police
5.3      Each state and union territory maintains a separate police force. NCRB data records a total of 1.7 million officers of all ranks across India in 2013. The central government recruits and manages the Indian Police Service, which posts officers to senior positions within state police forces. The central government oversees national armed police organisations: the Assam Rifles, the Border Security Force, the Central Industrial Security Force, the Central Reserve Police Force, the Indo-Tibetan Border Police and the National Security Guards. It is also responsible for the Bureau of Police Research and Development, the Central Bureau of Investigation (corruption investigation agency that reports directly to the prime minister), the Directorate of Coordination of Police Wireless, the Intelligence Bureau, the National Crime Records Bureau, the National Institute of Criminology and Forensic Science, and the National Police Academy.
5.4      The processes of recruitment, transfer, promotion and dismissal of police officers are opaque. Police resources, training and staffing are limited in some areas. There are media and civil society allegations that senior officials or political figures shape the conduct of investigations. Some victims of crime allege that people other than political figures or senior officials sometimes also attempt to interfere with police investigations.
5.5      Registration, investigation and prosecution of cases may be affected by bias in relation to the class, caste, ethnicity and religion of a victim or offender. Ethnic and religious minorities complain that police lack sensitivity, suspicions about which sometimes lead to communal violence. Local sources report that police, along with other agencies including the courts, public servants, judiciary and prosecutors, have an inherent bias when dealing with Dalit victims of crime in particular.
Judiciary
5.6      The Indian judiciary is independent of the executive branch. Some international rights organisations claim that corruption is prevalent, particularly at lower levels of the judiciary. Large backlogs of cases means that most citizens have great difficulty securing justice through the courts. In 2017, the government created a search and evaluation committee to support the appointment of judges.
5.7      The high courts in 2017 had over four million cases pending, with 25 million cases awaiting trial in subordinate courts. The Supreme Court has over 60,000 cases pending. Backlogs lead to lengthy pre-trial detention periods for a large number of suspects, in some cases significantly longer than any prison term their alleged offence would attract. Over two thirds of detainees in the criminal justice system are awaiting trial, and prisons are overcrowded.
5.8 Section 39A of the Constitution mandates that equal justice and free legal aid are rights of every Indian citizen. In practice, defendants are assigned state-appointed lawyers. The quality and consistency of representation by state lawyers varies. The standard of defence from a state-appointed lawyer would not compare to a highly-paid private lawyer.
5.9      In April 2017, the Ministry of Law and Justice launched an alternative to improve legal assistance for disadvantaged citizens. This included expanding pro-bono legal services to improve access to higher quality legal advice. The ministry partnered with the Ministry of Electronics and Information Technology to launch a pilot of ‘tele-law’ services, which provide legal services through common service centres in remote rural areas.
…
INTERNAL RELOCATION
5.14 Sections 19(1)(d) and (e) of the Constitution guarantee citizens the right to move freely throughout the territory of India and the right to reside and settle in any part of the territory of India, subject to reasonable restrictions in the interests of the sovereignty and integrity of India and the security of the state. The interpretation of ‘reasonable restrictions’ is left to the government and courts. It enables laws and regulations that can restrict movement (for example, where there is unrest or in some border areas) and residence (non-residents cannot buy land in Jammu and Kashmir or in Uttarakhand).
5.15    India’s internal migration flows are substantial. Migration data from the 2011 census has been collected, but not yet released. The 2001 census recorded an estimated 307 million internal migrants in India, defining as a migrant anyone who lived in a place different to their place of birth or place of last residence. This figure represents approximately 30 per cent of India’s total population. The numbers may include people who had moved over very short distances within the same district, and may have missed a significant number of seasonal migrants, many of whom work in the informal sector without papers.
Limits to internal relocation
5.16    Several factors may limit options for internal relocation. These include language barriers, a lack of documentation, lack of familial or community networks, lack of financial resources and employment opportunities, and discrimination based on ethnicity, religion, caste or gender.
5.17    India is a multi-lingual and multi-ethnic nation. Language barriers prevent internal migrants from obtaining access to health or educational opportunities. Bilingual or multilingual internal migrants have better opportunities for internal relocation.
5.18    A lack of identity documents and proof of local residence can restrict internal migrants’ access to public services and social security programs or even banking facilities. As a result, they often face barriers in obtaining subsidised food, housing and banking services until they can establish identity and local residence. Ethnic, religious or caste identity may lead to anti-migrant sentiment and limit options for internal relocation. Requirements to provide details of a husband’s or father’s name can exclude single women, women with children and domestic violence survivors from government services and accommodation.
5.19    DFAT assesses that individuals seeking protection from discrimination or violence have a wide range of viable internal relocation options, although these may be more limited for some individuals depending on their personal circumstances.
Conclusions
The country information informs the Tribunal as follows. Corruption and incompetence within the police force remain obstacles to adequate state protection in India. The Constitution guarantees citizens the right to move freely throughout the territory of India and the right to reside and settle in any part of the territory of India. Sikhs have lived peacefully in India and the majority of Sikhs do not experience societal discrimination or violence. Sikhs who advocate for an independent ‘Khalistan’ may be subject to attention by authorities. DFAT assesses that Sikhs in India generally face a low level of official and societal violence and discrimination.
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to his receiving country of India, there is a real risk he will suffer significant harm.
The applicant’s reliance on a ground of claim for protection not included in the application raises issues pursuant to s.423A of the Act. The Tribunal turns to consider s.423A of the Act.
Section 423A of the Act is in the following terms:
Section 423A How Tribunal is to deal with new claims or evidence
(1) This section applies if, in relation to an application for review of an RRT-reviewable decision (the primary decision) in relation to a protection visa, the applicant:
(a)  raises a claim that was not raised in the application before the primary decision was made; or
(b)  presents evidence in the application that was not presented in the application before the primary decision was made.
(2)  In making a decision on the application, the Tribunal is to draw an inference unfavourable to the credibility of the claim or evidence if the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made.
Section 423A was inserted by Migration Amendment (Protection and Other Measures) Act 2015 (Cth) (No 35 of 2015). The reference in s.423A(1) to an ‘RRT reviewable decision’ instead of a Part 7 reviewable decision is curious because by that time the Refugee Review Tribunal (RRT) had ceased to exist from 1 July 2015. It appears to be a drafting oversight as s.423A appears in Part 7 of the Act which only applies in respect of Part 7 reviewable decisions and the section would otherwise have no work to do following the RRT’s abolition. A fair reading of the section and the Act leads to the conclusion that it is intended to apply to matters within Part 7 of the Act. The Tribunal proceeds on that basis.
For protection visa applications made on or after 14 April 2015, the Tribunal is required to draw an adverse inference on the credibility of a new claim or evidence if it was not put forward before the primary decision maker and the Tribunal is satisfied that the applicant does not have a reasonable explanation why.
The Addendum to the Explanatory memorandum to the Bill (Migration Amendment (Protection and other measures) Bill 2014) describes the intention of Parliament in enacting the section as follows:
The intention of this provision is to enable timely, efficient and quality protection outcomes by discouraging late claims. This measure benefits all applicants with genuine claims to protection in Australia. Early and full presentation of claims and supporting evidence allows people entitled to protection to be recognised at the earliest opportunity.
Encouraging all claims to be presented at the earliest opportunity is consistent with guidelines issued by the United Nations High Commissioner for Refugees (‘UNHCR’). The current UNHCR Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status state that an applicant should ‘assist the examiner in full in establishing the facts of his case’ and ‘supply all pertinent information … in as much detail as is necessary’ to enable relevant facts to be established (paragraph 205, page 40, December 2011).
Proposed section 423A does not limit the RRT to the facts and evidence before the original decision-maker. Rather, it clarifies the manner in which the RRT is to consider any new claims and evidence presented to it. Applicants may continue to introduce new claims and evidence to support their application at the review stage. However, if the RRT is satisfied that there is not a reasonable explanation for not providing the information at the primary stage, the Tribunal will draw an inference unfavourable to the credibility of the new claims or evidence raised.
Similarly, section 423A does not allow or require the RRT to disregard new claims or evidence. All claims and evidence presented must be considered and evaluated. It is only once all claims and evidence have been considered that a Tribunal member can determine whether an applicant’s explanation for presenting new claims or evidence is reasonable.

Whether an explanation for a new claim or evidence is ‘reasonable’ will depend upon the circumstances of each case. While the term itself is not defined, the Addendum to the accompanying Explanatory Memorandum states as follows:
The general principles of administrative law and reasonable decision-making apply and the RRT will consider what is reasonable in all of the circumstances of the case. A reasonable explanation may include, but is not limited to:
·no reasonable opportunity to present the claim, e.g. interpreting or translating error made in the primary stage of the application;
·a change in the country situation affecting human rights occurred after the primary decision was made;
·new information relevant to the application became available, e.g. new documentary evidence of identity was forthcoming from the authorities in the home country;
·a change in personal circumstances allowing presentation of new claims, e.g. a new relationship (spouse or child) with a person who has protection claims in their own right; or
·being a survivor of torture and trauma, where the ill-treatment has affected an applicant’s ability to recall or articulate persecution claims.
The applicant’s new claim for protection is based upon his involvement with the ‘Khalistan movement’. It was not a part of his written application for protection and not mentioned prior to the hearing. It was only when asked by the Tribunal, at the outset of the hearing, whether he had any other basis for a claim for protection that the applicant disclosed what became the principle basis for his claim for protection. It became the subject of much evidence by the applicant, albeit quite vague in its terms. Indeed the claim based upon an altercation with an unidentified lawyer and unidentified proceedings was virtually abandoned. The applicant’s evidence as to why he changed the basis for his claim for protection was quite limited. He said ‘I don’t know but I told them all the details’. He did not elaborate upon this assertion.
In the Tribunal’s view the applicant has not provided an adequate explanation for the failure to provide the true nature of the claim for protection. Further, it is significant that the applicant practically abandoned the initial basis of the claim for protection. In those circumstances the Tribunal finds that s.423A applies and the Tribunal is required to draw an adverse inference as to the plausibility of the claim. The Tribunal does so and gives it significant weight.
The evidence of the applicant was often unresponsive to questioning, vague, imprecise or discursive. Often the evidence of the applicant contained elements of all these issues. The Tribunal has rehearsed the evidence as a representative narrative, given in real time, which was often quite disjointed. The Tribunal’s rehearsal of the evidence is not intended to be a transcript of the evidence, rather the best recording as it transpired. It does give and is intended to give an appreciation of the nature and quality of the applicant’s evidence. The Tribunal notes that it is a requirement of the Act that the applicant provide details of the applicant’s claim and that it is not incumbent upon the Tribunal to prove the applicant’s case. Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. The applicant did not produce any documents to corroborate the evidence. This is most surprising having regard to the importance of this matter, apparently, to the applicant and the time which the applicant has had to consider and prepare for this application.
The applicant’s evidence was extremely vague as to the circumstances in which he chose to leave India. Apparently this was because of his involvement in the ‘Khalistan movement’ but he did not provide details of his role or involvement in it, when he was involved, of the reasons for his imprisonment for two or three days by the police, or the injury suffered by him allegedly inflicted by the police. He has provided no cogent evidence as to why he believed he would be harmed if he were to return to India or why he could not relocate within India.
Further, the applicant did not give any detailed oral evidence of the key aspect of his written application for protection, namely he had become involved in an altercation with a lawyer in India, which had resulted in the applicant becoming embroiled in litigation. The Tribunal gives this significant weight.
On balance, for the reasons referred to above, the Tribunal does not accept the applicant’s evidence as to the basis for his claim for protection.
It is also relevant that the applicant travelled to Australia as a dependant on his wife’s student visa [in] May 2007 but did not claim protection until 10 January 2018 (unsuccessfully) and then again on 24 October 2018. Between November 2014 and at least November 2017 there appear to have been numerous Tribunal and court proceedings which appear to relate to the applicant’s wife’s visa status. The Tribunal observes that he did not apply for protection until after his family departed Australia, although the date is not clear upon which they departed. His reason for delay in applying for a protection visa were unconvincing. Delay in seeking a protection visa can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm.[2] Even a three-month delay in lodging a protection visa application has been held to be a legitimate matter to be taken into account when assessing the genuineness or depth of an applicant’s fear of persecution.[3] In Selvadurai vs the Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 the Court observed in regard to a delay in lodgement of a protection application: ‘In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth of the applicant's alleged fear of persecution. It is a rational consideration open on the material’. In the Tribunals view, the applicant’s delay in lodging a protection visa application further suggests that the bases of the claim for protection are not be accepted.
[2] Zhang v RRT & Anor [1997] FCA 423; Kavan v MIMA [2000] FCA 370.
[3] Subramanium v MIMA (1998) VG310 of 1997.
The Tribunal has considered whether the applicant feared persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion in accordance with s.5J(1)(a) of the Act.
Having regard to the evidence the Tribunal makes the following findings:
a)the Tribunal is not satisfied that the applicant fears being persecuted for reasons of race religion, nationality, membership of a particular social group or political opinion;
b)the Tribunal is not satisfied that there is a real chance that, if the applicant is returned to India, the applicant would be persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion;
c)the Tribunal is not satisfied that there is a real chance of persecution that relates to all areas of India;
d)the Tribunal is not satisfied that the applicant has a well-founded fear of persecution;
e)the Tribunal is not satisfied that the applicant is a refugee in accordance with s.5H(1) of the Act; and
f)the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations pursuant to s.36(2)(a) of the Act.
Complementary protection criteria assessment – s.36(2)(aa)
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 has considered whether 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 the applicant will suffer significant harm.
The mere fact that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or if that harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative enquiries and decision-making, the relevant facts of the individual case must be provided by the applicant.
While the Tribunal is required to adopt a reasonable approach to such matters, the Tribunal is not required to make the applicant’s case out for the applicant. Neither is the Tribunal required to accept uncritically any and all of the allegations made by the applicant. In respect of the Tribunal’s assessment in regard to complimentary protection, the Tribunal adopts the findings stated above in relation to the refugee criterion assessment.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Peter Booth

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.
…

[2020] AATA 4855

9 September 2020

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