1909517 (Refugee)

1909517 (Refugee) [2024] AATA 4297 (5 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1909517
COUNTRY OF REFERENCE:                   India
MEMBER:Mia Bailey
DATE:5 April 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 05 April 2024 at 5:29pm
CATCHWORDS
REFUGEE – protection visa – India – fear of harm from family of prospective wife – arranged marriage – applicant already married to Australian citizen in Australia – threats, wealth and political and police connections – country information – most marriages arranged within faith and caste, including applicant’s siblings – inconsistent and fabricated claims and evidence – visa and travel history and delay in applying for protection – now separated – political opinion – supporter of Khalistan movement – fear of harm from Hindu nationalists – referendum vote and social media activity – not for sole purpose of strengthening claim – low profile and no group or public activities – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), (6), 36(2)(a), (aa), (2A), (2A)(a), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth (1999) 197 CLR 510
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB (2013) 210 FCR 505
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
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 (delegate) on 27 March 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, a [Age]-year-old male, applied for the visa on 2 November 2017. The delegate refused to grant the visa on the basis that the applicant does not engage Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in s 36(2)(aa) and does not satisfy any of the other criteria in s 36(2) 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 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class. Relevant provisions of the Act are extracted in the attachment to this decision.
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 (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 engages Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in
[1] s 5AAA of the Act; Abebe v Commonwealth of Australia (1999) 197 CLR 510
s 36(2)(aa) of the Act. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the claim, or to establish or assist in establishing the claim.[1] For the following reasons, I have concluded that the decision under review should be affirmed.
Background and receiving country
As outlined in the delegate’s refusal decision, the applicant first arrived in Australia [in] May 2009 on a Student (TU-572) visa which ceased on 30 August 2011. On 15 August 2011 he applied onshore for a Skilled Graduate (subclass 485) visa which was refused by the Department on 6 July 2012.
He first departed Australia [in] January 2013 and returned [in] April 2013. On 25 February 2013, while offshore, he applied for a Temporary Work (subclass 457) visa, which was refused by the Department on 21 May 2013.
He departed Australia for a second time on [Day 1] July 2013 and returned on [Day 2] July 2013. On 2 July 2014 he applied for a Combined Partner (subclass 820/801) visa, which was refused by the Department on 7 August 2014. This decision was subsequently affirmed on merits review and his application for judicial review was dismissed on 1 December 2016. The applicant applied for a protection visa on 2 November 2017.
The applicant has consistently claimed to be from [a] village near Pilibhit in the state of Uttar Pradesh and to be of Sikh ethnicity and religion. I have no concerns with those claims.
The applicant provided a copy of the biodata page of his Indian passport as part of his protection visa application. The delegate accepted that the applicant is a citizen of India and there is no information before me to the contrary. I find that the applicant is a citizen of India, and that India is his receiving country for the purposes of assessing his claims for protection.
Evidence before the delegate
According to his protection visa application, he completed high school in [Year] in Pilibhit and undertook a Diploma of [Subject] in Australia between October and December 2012. He married [Ms A], an Australian citizen, on [Date].
Regarding his protection claims, the applicant stated that if he returns to India, he thinks he will be killed. He claims to have previously experienced harm in India as ‘the persons have tried killing me because they came to know my marriage with [Ms A] as they have fixed my marriage with some girl earlier.’ He sought help from the police but ‘they were politically very strong and have a hold in our area’ and have threatened his parents that if he returns, they will kill him. He could not relocate to another part of India because they are able to easily find him throughout the country. When he returned to India in 2013 for his ‘brother’s wedding’, he saw them ‘chasing one person’ who had been hiding in the south of India because of a land dispute; they ‘found him and killed him’.
The applicant attended an interview with the delegate on 14 March 2019. Relevant evidence from that interview is summarised below:
i.His family arranged a marriage for him to a woman named ‘[Ms B]’. Her family live in the same village as his family and are ‘well established’. He has never met [Ms B] or her family.
ii.He first learnt of the arranged marriage when he returned to India in January 2013 to visit his family. He believes his parents made the arrangement several years earlier, in around 2010.
iii.He has one older brother who married in 2004 or 2005 and one older sister who married in 2007. Both marriages were arranged. Asked whether, at the time he left India in 2009, he thought his parents would also arrange a marriage for him, he stated that his situation is different to his siblings because he is educated and speaks English.
iv.After learning of the arranged marriage, he told his parents about his marriage to [Ms A] in Australia. He did not tell them earlier because he wanted to share this news with them in person. His parents were ‘stressed’ because they had given their word to [Ms B]’s parents about the marriage.
v.By the time of his second trip to India in July 2013, the situation with [Ms B]’s parents had not been resolved. When he landed in Delhi, he spoke with his parents who told him not to return to the village. [Ms B]’s family were very angry because they had learnt of his marriage in Australia. They were demanding the applicant be brought to them so they could kill him. The threats were primarily coming from her father and [brothers], but the entire family was upset.
vi.[Ms B]’s family had weapons and were very rich and politically powerful. When asked for details about the source of their income and nature of their political connections, he stated that they are involved in farming and some other businesses and have connections with the Bharatiya Janata Party (BJP).
vii.The applicant did not return to his village. Instead, he travelled to the Golden Temple in Amritsar for one night and then to Ludhiana where a friend of his lived. While in Ludhiana he arranged for his return ticket to Australia to be changed to an earlier date so he could leave India.
viii.When asked about the statement in his protection visa application that he had experienced harm in India, he responded that he had not but he would have been harmed if he had returned to his village in July 2013.
ix.When asked about the statement in his protection visa application that he sought help from the police in connection with the harm he had experienced, he stated that he called the police while he was in Punjab, and they told him he could file a First Information Report if he returned to Pilibhit. He didn’t trust the police because they are connected to the politicians.
x.The delegate queried the statement in his protection visa application that he returned to India in 2013 for his brother’s wedding, whereas earlier in the interview he stated that his brother married in 2004 or 2005. The applicant responded that it was not his brother’s wedding but a friend who was like a brother.
xi.The applicant confirmed that [Ms B]’s family have not made any threats to harm his parents. His parents denied any involvement in the applicant’s conduct and pretended to distance themselves from him. [Ms B]’s family still ask his parents when he will return to India.
xii.Asked what has happened to [Ms B], he stated that he thinks her family arranged another marriage but he’s not sure. Her family is still seeking to harm him because it is a matter of honour. If he returns to India, her family could easily find out his location and kill him.
xiii.Asked why he waited until November 2017 to lodge a protection visa application, he responded that prior to that he didn’t know he could apply for protection. He thought that was only available to people from countries such as Syria and Afghanistan. He learnt of this option after speaking with a migration agent while he was in immigration detention.
The delegate accepted that the applicant feared harm from [Ms B]’s family due to dishonouring an arrangement to marry their daughter. This was found to be for reasons of a personal vendetta rather than any of the reasons in s 5J(1)(a) of the Act. Under the complementary protection assessment, the delegate did not accept the applicant’s claims that [Ms B]’s family were politically powerful such that they would be able to locate him throughout India. The delegate found that s 36(2B)(a) applied as it would be reasonable for the applicant to relocate to an urban area such as Delhi, where there was no real risk of significant harm.
Evidence before the Tribunal
The applicant appeared before the Tribunal on 13 March 2024 to give evidence and present arguments. Regarding his protection visa application, the applicant indicated that he received some assistance from a migration agent but confirmed that he read the content of the application and agreed with it.
His parents and brother continue to live in [the] village, which is about [Distance] kms from the city of Pilibhit. He estimated the village as being around 2 kms square in size and agreed that everyone in the village knows each other. His father owns about 20 acres of farmland around the village. Sikhs comprise a minority in his local area.
The applicant confirmed that he continues to fear harm from [Ms B]’s family because of the arranged marriage. Asked how his parents came to arrange a marriage with [Ms B]’s family, he stated that their grandfather’s knew each other; the marriage was arranged because of this familial connection. [Ms B]’s family are also Sikh. I discussed with the applicant that at his protection visa interview he stated that [Ms B]’s family lived in the same village and queried how he would not have known them, given his earlier evidence regarding the size of the village. He responded that [Ms B]’s family live in the same area, not the same village as his family. He indicated that [Ms B]’s family live about 10 to 15 kms away from his village. He also stated that after primary school, he spent a lot of time away from his village because he lived in Pilibhit for his secondary school education.
I discussed with the applicant that, according to country information, most marriages in India are arranged and are based on the same faith and caste. Considering the prevalence of arranged marriages, and that both his siblings had arranged marriages, I queried why it would have come as a surprise in January 2013 that his parents had arranged a marriage for him. He acknowledged that arranged marriages are common in India, but his situation was different to his siblings due to his level of education.
Asked about his 2 trips to India in 2013, he stated that during the first trip in early 2013 he spent about one month in his village visiting his family and during this time there was no problem with [Ms B]’s family. The situation with [Ms B]’s family deteriorated following his departure from India in April 2013. He returned in July 2013 with the intention of explaining his situation to [Ms B]’s family. He hoped they could compromise and move on.
I asked the applicant to clarify when his parents told [Ms B]’s family that the marriage could not proceed. He stated that it was after his return to Australia in April 2013. Initially her family thought that he would return, and the marriage would still go ahead. In around May or June 2013, [Ms B]’s family learnt of his marriage to [Ms A]. They then started threatening his parents that if the applicant did not return and marry their daughter, there would be problems for him. Asked why he returned to India in July 2013 if [Ms B]’s family had made such threats and were politically powerful and connected, he responded that he thought he could discuss the situation with them. At that time, [Ms B]’s family had connections with the police but were not as politically connected as they came to be after the change of government in 2014.
Asked about his claims to have contacted the police while he was in Punjab in July 2013, he stated that he called the local ‘police beat’ near his village and told them about the situation with [Ms B]’s family. They said they could protect him, but he knew the police were connected with [Ms B]’s family. Asked why he would contact the police if he believed them to be connected with [Ms B]’s family, he responded that he contacted the police beat rather than the main police station where the Inspector with connections to [Ms B]’s family was based. I discussed with the applicant that I may have concerns as to why he would contact the police at all if he was aware of their connection with [Ms B]’s family.
Asked what has occurred with [Ms B]’s family since he attended his protection visa interview, he stated that they are now very strong, wealthy, and politically powerful. Every 2 or 3 months over the past 4 years, they call his parents and ask when he is coming back. Asked who makes these calls, he stated that they use a ‘third party’ who knows both families. He confirmed that his parents have not experienced any harm from [Ms B]’s family. His parents tell them that they have very little contact with the applicant and don’t agree with his behaviour to protect themselves. The applicant has received no contact from [Ms B]’s family.
The applicant stated that the primary reason he fears returning to India is because he did not honour the arranged marriage. He fears that he will be abducted by [Ms B]’s family because he married someone of a different religion. The applicant advised that he is now separated from [Ms A]. He also raised additional claims relating to the Khalistan referendum in Australia in 2023, social media postings, and increasing Hindu nationalism in India, as discussed below.
Last year he took part in a referendum in Brisbane regarding the creation of an independent Sikh state (Khalistan). He confirmed that his only involvement in the referendum or the Khalistan movement was to cast a supporting ‘yes’ vote. He believes that [Ms B]’s family are aware of this and may have informed the Indian authorities. Asked why he thinks [Ms B]’s family would be aware that he voted in the referendum, he stated that some people in his village told him they heard that he took part in the referendum. He is unsure how they know this but speculated that they may have seen him in social media coverage of the referendum. He noted there are many videos on social media showing hundreds of people lining up to vote, some of which have been published in the Indian media. Asked whether he has seen any images of himself on social media in connection with the referendum, he stated no.
I discussed with the applicant that I may not accept that simply voting in the referendum would cause problems for him in India. I noted that he appears to have no profile as an activist and has had no other involvement in the Khalistan movement. He responded that the Indian government is taking a harsh stance and punishing people from minority groups who peacefully advocate for causes which are not supported by the government, such as those involved in the recent farmer protests in India. He also stated that he supports the Khalistan movement and if he returned to India, he would ‘not keep his mouth shut’. Asked whether he has done anything in Australia to support the movement, other than voting in the referendum, he stated that he is fearful of doing anything to publicly support the movement because he could be killed in Australia by the Indian authorities. He referred to transnational killings by the Indian authorities, such as the recent killing in Canada of a Sikh activist.
The applicant also indicated that, as a Sikh, he fears returning to India because of rising Hindu nationalism. Following the change of government in 2014, India has become less secular and more divided. Minorities are increasingly marginalised in favour of the Hindu majority. He referred to the activities of the Hindu nationalist group, Rashtriya Swayamsevak Sangh (RSS). Asked how this would impact him personally, he stated that he is a Sikh and does not support the government’s Hindu nationalist agenda. He confirmed that no harm has previously come to him or his family because of their Sikh religion and they were not involved in any activities that would bring them to the attention of the authorities.
I discussed with the applicant that while I accept there is some degree of Hindu nationalism in India, I would need to consider whether this would give rise to a real chance of harm to him personally. I discussed relevant information from DFAT that there have been some high-profile attacks by Hindu nationalists against minority groups, but these are not day-to day-occurrences and generally don’t affect people on regular basis. In response, the applicant stated that people who are peacefully involved in the recent farmer protests are being accused by the government of being Khalistani terrorists. The government is targeting Sikhs and restricting freedom of expression.

The applicant claimed that if he posts anything against the government on social media, this could result in him being labelled as a Khalistani terrorist. Asked whether he posts material on social media and if so, of what nature, he stated that he posts ‘some things’ on his [Social media] account which is publicly accessible. Asked for further details, he stated that last week and the week prior he posted about a Sikh activist, Amritpal Singh, and a group of his supporters who have been jailed. Asked about the content of these posts, he responded that he referred to what is happening to these people and stated that they should be released because the government has no evidence against them, and they are being detained because they are Sikh. I discussed relevant information from DFAT which indicates that the Indian media landscape, and the opinions expressed on social media, are diverse and both pro- and anti-government journalists and social media users generally go about their activities unhindered. I raised with the applicant that, based on his evidence, I may not accept that he would face a real chance of harm due to his social media postings.
I also discussed with the applicant several concerns about the credibility of his claims regarding the arranged marriage and threats from [Ms B]’s family, as below:
i.That he never met [Ms B]’s family despite living in the same area and having familial connections.
ii.That he was unaware prior to January 2013 that his family were intending to arrange a marriage for him.
iii.That he returned to India in July 2013 in circumstances where [Ms B]’s family, whom he claims to be politically connected and powerful, had made threats against him.
iv.Given that more than 10 years has elapsed since the initial threats were made, with no harm to his family in India, I may have concerns as to why [Ms B]’s family would continue to hold an adverse interest in him.
v.A significant concern is the delay of over 4 years in applying for a protection visa. He claims to have feared harm from [Ms B]’s family when he returned to Australia in July 2013, yet did not apply for a protection visa until November 2017. Regarding his response to the delegate during his protection visa interview that he was not previously aware that he could apply for protection, I may have concerns with that explanation given that since arriving in Australia on a Student visa, he had applied for several other visa types which suggests that he had a reasonable understanding of the Australian visa system.
In response the applicant stated that in 2013 [Ms B]’s family was not as politically strong or connected because the BJP only came into power in 2014. It took around 2 or 3 years from the BJP assuming power for the family to fully establish itself. I discussed with the applicant that he claims to have not returned to his village during his trip in July 2013, and to have departed India after a few days, due to a fear of harm from [Ms B]’s family.
Regarding the delay in lodgement, the applicant reiterated that he was ‘completely unaware’ prior to late 2017 that he could apply for a protection visa. He also referred to pursuing other visa options prior to applying for a protection visa, including a Partner visa, which would have allowed him to remain in Australia.
Asked whether there are any other reasons he feels unable to return to India, the applicant confirmed that he has raised all relevant claims but noted that the available country information does not necessarily reflect the true situation in India.
Factual findings and assessment
In determining whether the applicant engages protection obligations, it is necessary to make findings of fact on relevant matters which involves an assessment of the credibility of the applicant’s claims. I have had regard to the Tribunal’s Guidelines on the Assessment of Credibility[2] and accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[3] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[4]
Arranged marriage
[2] Administrative Appeals Tribunal, Migration & Refugee Division, Guidelines on the Assessment of Credibility, July 2015
[3] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at pages 43–44.
[4] Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at [348] per Heerey J; Kopalapillai v MIMA (1998) 86 FCR 547.
I have significant credibility concerns regarding the applicant’s claims to fear harm from [Ms B]’s family due to not honouring an arranged marriage. For the reasons below, I do not accept any of these claims as credible.
i.The applicant claims that he returned to India in July 2013 with the intention of discussing or explaining his situation to [Ms B]’s family. He claims to have never met the family but knew that they were wealthy, powerful, and with police connections. At this time, [Ms B]’s family was aware that he had married [Ms A], despite the arrangement to marry their daughter, and had made threats against him to his parents. In these circumstances, I do not find it credible that the applicant would choose to return to India so that he could explain his situation to [Ms B]’s family. As outlined in the delegate’s decision, country information supports that ‘honour killings’, including for reasons of refusing an arranged marriage, occur in villages and small towns in northern India, such as the applicant’s local area. I have considered the applicant’s response at the hearing that [Ms B]’s family were not as politically connected or powerful in 2013, prior to the BJP forming government. However, this is inconsistent with evidence in his protection visa application, where he claimed that the family were ‘politically very strong’ and ‘have lots of political approach with central government’ such that they could easily locate him throughout India. It is also inconsistent with his oral evidence to the Tribunal that the family was sufficiently powerful and connected as of July 2013 that he felt unable to return to his village and departed India a few days after his arrival.
ii.The applicant claims that, after arriving in India in July 2013, he contacted the local police near his village to discuss the threats from [Ms B]’s family. He also claims that he did not trust the police because they had connections with [Ms B]’s family. I do not find it plausible that the applicant would contact the police to seek assistance if he knew the police had connections with the people that were threatening him. I have considered the applicant’s response at the hearing that he contacted the local ‘police beat’ rather than the local police station. However, I do not find this to sufficiently explain why he would consider it safe to contact any local police authority regarding this matter.
iii.In the applicant’s circumstances, I find the delay of more than 4 years in lodging a protection visa application to be of significant concern. He claims to fear being killed or seriously harmed by [Ms B]’s family since the time he returned to Australia in July 2013, yet did not apply for protection until November 2017. I have considered his responses that he was unaware that he could apply for a protection visa and was pursuing other visa options to enable him to remain in Australia. Given the applicant’s reasonably extensive visa application history since arriving in 2009, I do not find his explanation of being ‘completely unaware’ of the protection visa pathway to be convincing. I acknowledge that he pursued various other visa pathways before applying for protection. However, as outlined in the delegate’s decision, the merits review of his Temporary Work visa was affirmed on 10 October 2013, yet he did not lodge an application for a Partner visa until 2 July 2014. There was a further gap of almost one year between the merits review of his Partner visa refusal being affirmed and his protection visa application being lodged. It was during this period, while the applicant was in held immigration detention, that he applied for protection. In the applicant’s circumstances, I find the delay in lodging a protection visa application to significantly undermine the credibility of his claims regarding threats from [Ms B]’s family.
Considering the above, I do not accept that the applicant was subject to any threats from [Ms B]’s family, or anyone acting on their behalf, regarding an arranged marriage or because the applicant married a non-Sikh in Australia, including when he returned to India in July 2013 or at any time since. I find that the applicant has fabricated these claims for the purpose of strengthening his claims for protection. I therefore find that there is not a real chance that he would be harmed by, or on behalf of, [Ms B]’s family if he returns to India.
Support for the Khalistan movement and social media postings
The applicant claims that he voted in a referendum held in Brisbane in 2023 regarding the creation of an independent Sikh state, known as Khalistan. He claims that people from his local area in India may be aware of his participation in the referendum, possibly through social media. He also claims that his postings on social media may cause him to be viewed as a ‘Khalistani terrorist’ and come to the adverse attention of the Indian government. He claims that he supports the Khalistan movement and would wish to voice his support if he returns to India. I have considered the following country information in assessing these claims.
The Khalistan movement began around the time of India’s independence from colonial British rule in 1947 when some Sikhs called for an independent Sikh nation to be created within the state of Punjab. The movement reached its peak in the 1970s and 1980s. The Khalistan movement is considered a security threat by the current Indian government.[5] In 2019, the US-based pro-Khalistan group, Sikhs for Justice (SFJ), was banned under India’s Unlawful Activities (Prevention) Act (UAPA). The Ministry of External Affairs claimed that SFJ is espousing secessionism and militant ideology in Punjab.[6] According to a 2020 article, the government has also blocked 40 SFJ websites.[7] In recent years, credible analysts have indicated that the Khalistan movement enjoys little support in the Punjab, with greater strength among overseas Sikh diaspora groups and neighbouring Pakistan.[8]
[5] Aljazeera, Amritpal Singh: Who is he and why was he arrested?, 23 April 2023
[6] SBS, What is the 'Khalistan referendum' and where does Australia stand on the issue?, 20 January 2023
[7] Press Trust of India, India blocks 40 websites of banned US-based pro-Khalistani group ‘Sikhs for Justice’, 5 July 2020
[8] The Wire, India-Canada Standoff: Khalistan Not an Issue in Today’s Punjab, 21 September 2023; Immigration and Refugee Board of Canada, Situation and treatment of suspected or perceived Sikh militants and Khalistan supporters in the state of Punjab by society and the authorities; prevalence of arrests, including methods used by the police to track them, IND201185.E 30 May 2022
In 2018, SFJ announced the Khalistan referendum which seeks to establish a consensus among Sikhs regarding the question, ‘Should Indian governed Punjab be an independent country?’. SFJ has proposed that this be achieved by carving out the north Indian state of Punjab, parts of Haryana and Himachal Pradesh, and several districts of Rajasthan and Uttar Pradesh.[9] SFJ has stated that the referendum is non-binding and non-governmental.[10] Voting in the referendum started in October 2021 in the UK and has since taken place in Switzerland, Italy and Canada.[11]
[9] SBS, What is the 'Khalistan referendum' and where does Australia stand on the issue?, 20 January 2023
[10] SBS, What is the 'Khalistan referendum' and where does Australia stand on the issue?, 20 January 2023
[11] The Nation, 11,000 Sikhs vote for Khalistan in Brisbane amid India’s cyber attack, 20 March 2023
On 29 January 2023, SFJ held the first phase of the Australian chapter of the Khalistan referendum at Federation Square in Melbourne.[12] Over 50,000 Sikhs are reported to have voted in Melbourne.[13] According to an article published on 20 March 2023, more than 11,000 Sikhs took part in the second phase of the Khalistan referendum held at the Brisbane Convention and Exhibition Centre. There were 3 disruptions as the electronic online voting system came under a cyber security attack. SFJ said it suspected that Indian state-backed hackers were involved in the planned attack and alleged that similar attempts have been made during previous voting phases across Europe.[14]
[12] SBS, Voting in 'Khalistan referendum' unfolds amid clashes in Melbourne, 30 January 2023
[13] The Nation, 11,000 Sikhs vote for Khalistan in Brisbane amid India’s cyber attack, 20 March 2023
[14] The Nation, 11,000 Sikhs vote for Khalistan in Brisbane amid India’s cyber attack, 20 March 2023
In September 2023, a senior leader of SFJ in Canada, Hardeep Singh Nijjar, was assassinated outside a Sikh temple in Vancouver. According to Indian authorities, Nijjar was a senior leader in the Khalistan Tiger Force and had been designated a terrorist under the UAPA. India had been seeking his extradition from Canada since 2018. This led some to claim that Nijjar’s killing indicates a threat to pro-Khalistani Sikhs in other countries such as Australia. The Canadian Prime Minister alleged the killing may have been undertaken by actors with links to the Indian Government. The Indian government has denied any involvement in Nijjar’s killing.[15]
[15] The Hindu, Khalistan outfit’s chief Nijjar was wanted by the NIA and Punjab Police in multiple cases, 19 September 2023; The Wire, ‘Always Suspected Indian Government’: Hardeep Singh Nijjar’s Son on Trudeau’s Allegation, 19 September 2023; Press Trust of India, 9 Individuals Linked to Khalistani Organisations Designated as Terrorists: Home Ministry, 2 July 2020; The Sydney Morning Herald, Sikh separatist claims ‘Australia is next’ after leader assassinated in Canada, 19 September 2023; ABC News, India rejects allegations it could be behind killing of Sikh leader after Canada expels top diplomat, 19 September 2023
Amritpal Singh is the current leader of Waaris Punjab De, which was launched in September 2021 by a Sikh actor named Deep Sidhu in Punjab and considers itself a ‘pressure group’ and a social platform to protect the rights and culture of Punjab. Waaris Punjab De was part of the campaign to mobilise farmers against agricultural reforms pushed by Prime Minister Narendra Modi’s government. Singh came to the attention of the authorities due to calling for violence and espousing the cause of Khalistan on Waaris Punjab De platforms and his public appearances in which he openly carried weapons. In February 2023 Waaris Punjab De supporters stormed a police station in Punjab armed with weapons demanding the release of a supporter, with some police being injured. This resulted in a sustained crackdown on members of Waaris Punjab De in March 2023 with at least 353 people arrested; 7 under the National Security Act, which allows for those considered a threat to national security to be detained without charge for up to one year. Amritpal Singh went into hiding and the authorities then launched a month-long manhunt, deploying thousands of paramilitary soldiers and suspending mobile internet services in some areas of Punjab. In April 2023 Singh was arrested in a village in Punjab under the National Security Act and was sent to a prison in Assam. Allegations of criminal links have also been made against Singh.[16]
[16] Aljazeera, Amritpal Singh: Who is he and why was he arrested?, 23 April 2023; The Hindu, Explained: What is Waris Punjab De and why has its rise set alarm bells ringing?, 3 March 2023; The Hindu, Pro-Khalistan leader Amritpal Singh’s supporters attack police in Punjab’s Ajnala, 23 February 2023; The Hindu, Amritpal case: Police says 197 released so far; 7 detained under NSA, 26 March 2023; The Hindu, Amritpal Singh promoted gun culture in Punjab, had links with drug dealers, say officials, 23 March 2023
Considering the above country information and the applicant’s oral evidence to the Tribunal, I accept that he voted in support of Khalistan at the referendum in Brisbane in March 2023. While he has not provided any supporting documentary evidence, I accept that he has posted comments on his personal [Social media] account regarding the arrest and detention of Amritpal Singh and his supporters. Based on the applicant’s oral evidence, I find this to amount to a description of what has occurred and his view that these people should be released due to a lack of evidence. I am satisfied that this conduct was not engaged in by the applicant for the sole purpose of strengthening his refugee claim and have therefore not disregarded it under s 5J(6) of the Act.
Country information indicates that Sikhs who advocate for an independent Khalistan, including by attending demonstrations, meetings or posting on social media, may be subject to attention and monitoring by the authorities, and criminal charges.[17] According to sources cited in a 2022 report by the Immigration and Refugee Board of Canada (IRBC), Sikhs cannot openly advocate for or support the creation of Khalistan. Sikhs who ‘display separatist beliefs’ face adverse attention from the authorities throughout India and, outside the Punjab, possible ‘retribution’ by the Hindu majority.[18] In March 2023, 12 people were charged with having links to the proscribed organisation, the Khalistan Tiger Force.[19] Sikh Scottish national and online activist for Sikh rights, Jagtar Singh Johal, was arrested on terrorism charges in while in Punjab in 2017.[20]
[17] Immigration and Refugee Board of Canada, Situation and treatment of suspected or perceived Sikh militants and Khalistan supporters in the state of Punjab by society and the authorities; prevalence of arrests, including methods used by the police to track them, IND201185.E, 30 May 2022
[18] Immigration and Refugee Board of Canada, Situation and treatment of suspected or perceived Sikh militants and Khalistan supporters in the state of Punjab by society and the authorities; prevalence of arrests, including methods used by the police to track them, IND201185.E, 30 May 2022
[19] The Hindu, NIA chargesheets 12 persons linked to pro-Khalistan outfits, Pakistan-based elements, 21 March 2023
[20] Al Jazeera, Rights groups accuse UK over arrest of Sikh blogger in India, 23 August 2022; BBC News, Jagtar Singh Johal: Trial date for Scot facing terrorism charges, 16 October 2022
A number of people have been charged or convicted of offences under the UAPA for promoting the Khalistan movement. According to a 2022 report by the Council on Minority Rights in India, Sikhs are ‘bearing the brunt’ of the UAPA which allows the authorities to arrest and jail individuals for years without a trial. As of July 2020, there were 94 UAPA cases in Punjab province under which 370 people had been kept in jail, most of them Sikhs.[21]
[21] Council on Minority Rights in India, Religious Minorities in India Report, 1 November 2022
The above report refers to several cases in which the basis for the UAPA charge is social media posts. In April 2018, Punjab Police arrested 4 youths, who were part of a Facebook page ‘Referendum 2020’ – an online campaign for Khalistan. In December 2018, Harpal Singh Naik and Mohiuddin Siddiqui were arrested under the UAPA for allegedly creating a pro-Khalistan Facebook group, ‘Khalistani Zindabad Khalistan’, which had about 2,315 followers. They were accused of posting images and videos of Operation Blue Star and pro-Khalistani posts in addition to promoting Referendum 2020. In July 2019, Jarman Singh was convicted of terror-related charges in connection with his involvement in WhatsApp groups that promoted Referendum 2020. In June 2020, Mohinder Pal Singh, Gurtej Singh and Lovepreet Singh were charged with terrorism related offences in connection with the creation of a Facebook page, ‘KhalsaBhindrewalaji’, which included videos, pictures, and songs supporting Khalistan leaders and the Khalistan movement.[22]
[22] Council on Minority Rights in India, Religious Minorities in India Report, 1 November 2022

The IRBC report cites sources stating that the police and intelligence forces devote considerable resources to tracking Khalistan activists through social media and that social media posts are monitored to identify individuals with separatist connections who are then ‘counselled’ by the authorities.[23]
[23] Immigration and Refugee Board of Canada, Situation and treatment of suspected or perceived Sikh militants and Khalistan supporters in the state of Punjab by society and the authorities; prevalence of arrests, including methods used by the police to track them, IND201185.E, 30 May 2022
Given the extensive media coverage of the Khalistan referendum, in both print media and on various social media platforms. I find it credible that people from his local area in India have asked the applicant about his participation in the referendum in Australia. He has provided no evidence that he has been captured in any media coverage of the referendum or that he has been personally identified as participating in the referendum. However, I acknowledge the reports of cyber-attacks on the electronic voting systems during the Brisbane referendum and accept that this could have resulted in the applicant’s details being accessed, including by the Indian authorities. However, considering the above country information, I find that this would not result in a real chance of harm to the applicant. I find that the act of voting in the referendum would not, in itself, cause the authorities or members of society, including the Hindu majority community in the applicant’s state of Uttar Pradesh, to view the applicant as having separatist connections or affiliations with any pro-Khalistan group or as a pro-Khalistan advocate or activist.
I accept that the applicant’s social media posts, as described above, are publicly accessible and could come to the attention of the Indian authorities or members of society, including the Hindu majority community in the applicant’s state of Uttar Pradesh. Based on the available evidence, I am not satisfied that the posts would cause the authorities, or members of society, to view the applicant as having separatist connections or affiliations with any pro-Khalistan group or as a pro-Khalistan advocate or activist. I acknowledge that Amritpal Singh and other members of Waaris Punjab De have voiced support for Khalistan. However, I find the applicant’s posts to be directed more generally to the fairness or legality of the arrest and detention of members of this group, rather than to the causes supported by the group. The applicant is not part of any group, including any social media group, that advocates for Khalistan or more broadly for Sikh rights and has had no involvement in pro-Khalistan activities aside from voting in the referendum. As discussed with the applicant at the hearing, DFAT reports that the Indian media landscape, and the opinions expressed on social media, are diverse and both pro- and anti-government journalists and social media users generally go about their activities unhindered.[24] I find that there is not a real chance that the applicant would be harmed for reasons of his social media posts.
[24] Department of Foreign Affairs and Trade, Country Information Report India, September 2023, p 32
The applicant claims that he supports the Khalistan movement and, if he returns to India, would express his support. As above, I accept that the applicant voted in support of Khalistan in the referendum. He has not engaged in any other activities in support of the Khalistan movement, including in Australia. As above, I do not find his social media posts regarding Amritpal Singh and other members of Waaris Punjab De to amount to advocacy for or affiliation with the Khalistan movement.
The applicant stated to the Tribunal that he has not engaged in any pro-Khalistan activities in Australia, other than voting in the referendum, because he feared being killed by Indian authorities in a manner akin to the assassination in Canada of SFJ leader, Hardeep Singh Nijjar. I do not accept that the applicant has refrained from becoming involved in any pro-Khalistan activities while in Australia due to a fear of being killed or harmed by Indian authorities. As discussed above, Hardeep Singh Nijjar was a senior SFJ leader who the Indian authorities had designated a terrorist due to alleged high level links with the Khalistan Tiger Force. I do not find it credible that the applicant would modify his behaviour, including by refraining from any public expression of his views on Khalistan or involvement in pro-Khalistan groups or activities, due to a fear of being similarly targeted.
I accept that the applicant holds personal views in support of Khalistan and Sikh rights. I do not accept that he will seek to publicly express those views if he returns to India. Considering his conduct to date, I find that he would choose to keep those views private, and this would not be due to a fear of persecution.
Considering the above, I find that there is not a real chance that the applicant will be harmed due to voting in the Khalistan referendum, his social media postings, or the holding of personal views in support of Khalistan and Sikh rights.
Hindu nationalism
The applicant claims that, as a Sikh, he fears harm from Hindu nationalism. He claims that the government is targeting Sikhs and restricting freedom of expression.
According to DFAT, since the election of the BJP government in 2014 there has been sustained media attention on the issue of Hindu nationalism, sometimes known as Hindutva, roughly translated as ‘Hindu-ness’. A key aim of Hindu nationalism is to ‘restore’ the pre-eminence of Hindu culture-civilisation in India. There have been high-profile attacks by Hindu nationalists against minority religious communities and some analysts have claimed that the national government has created a permissive environment for Hindu nationalist groups to intimidate members of minority religions through violence, hate speech and otherwise. The most prominent Hindu nationalist group is the RSS and its many affiliated organisations. RSS was founded in 1925 , however came to international prominence after the election of the BJP government at the national level. The BJP emerged from the RSS as its political wing.[25]
[25] Department of Foreign Affairs and Trade, Country Information Report India, September 2023, p 20
According to a September 2022 Guardian report, Hindu nationalism has been part of Indian politics for decades and, at various points, has been deployed as a populist political tool by both of India’s major political parties, Congress and the BJP, as a way to win the vote of the country’s Hindu majority. However, since the BJP came to power in 2014, led by the prime minister, Narendra Modi, Hindu nationalism has come to entirely dominate the Indian political landscape. The BJP is widely seen as the political wing of the RSS – Modi was an RSS youth member – and rightwing Hindu nationalism is at the centre of their political agenda. The BJP openly prescribes to Hindutva but has downplayed its associations with violence, instead proclaiming it is a cultural agenda that promotes India’s heritage and history. India’s constitution, drawn up in 1950 after independence, enshrines India as a secular democracy. However, the BJP has been accused of passing policies and pursuing a religiously divisive agenda, which seeks to make India a Hindu state and has led to a rising tide of intolerance and communal violence in India and the targeting of Muslim activists, journalists, and civil society.[26]
[26] The Guardian, What is Hindu nationalism and how does it relate to trouble in Leicester?, 21 September 2022
DFAT refers to several incidents of communal violence involving Hindu nationalists, many of which target the Muslim community. DFAT states that when violence by Hindu nationalists occurs, it attracts significant media attention. Violent incidents are often perpetrated by extremists and fringe groups. While those groups are loud and can amplify their voices widely through social media, such incidents of violence are not day-to-day occurrences.[27]
[27] Department of Foreign Affairs and Trade, Country Information Report India, September 2023, p 21
DFAT assesses Sikhs in India generally face a low level of official and societal discrimination and violence. This may be because most Sikhs live in Punjab, which is a majority Sikh state, and Sikhs outside of Punjab have strong communities based around their places of worship. DFAT is not aware of violence or discrimination commonly occurring against Sikhs in other parts of India.[28]
[28] Department of Foreign Affairs and Trade, Country Information Report India, September 2023, p 26
The Pew Research Centre indicates that 14 per cent of Sikhs are of the view that there is a lot of discrimination against Sikhs in India today, and 18 per cent report feeling personally discriminated against due to their religion.[29] There are reports that Hindu nationalists have harassed Sikhs and pressured them to reject religious practices and beliefs that are distinct to Sikhism.[30] According to the Council on Minority Rights in India, during 2021 there were 3 cases of alleged hate crimes against Sikhs in Punjab and 4 in Uttar Pradesh. The report notes that hate crimes against Sikhs are not widely reported in the media.[31] Many Sikhs from Punjab participated in the farmers’ protests of 2020-2021, and there are reports of harassment and attacks against protestors. Some authorities attempted to link the farmers protests to the Khalistan movement. Senior BJP leaders, their supporters on social media, and pro-government media, have accused Sikhs involved in the protests of having a ‘Khalistani’ agenda or being anti-national or treasonous.[32]
[29] Pew Research Center, Religion in India: Tolerance and Segregation, 29 June 2021
[30] Religion Unplugged, How Sikhs Became A New Target Of India’s Right Wing And Voted No To BJP, 12 March 2022; UK Home Office, Country Policy and Information Note – India: Religious minorities, May 2018; US Commission on International Religious Freedom (USCIRF), USCIRF 2018 Annual Report, 25 April 2018; Immigration and Refugee Board of Canada, IND106294.E India: Situation of Sikhs outside the state of Punjab, including treatment by authorities and society; ability of Sikhs to relocate within India; treatment of Khalistan supporters or perceived supporters outside of Punjab (2017-October 2019), 16 December 2019
[31] Council on Minority Rights in India, Religious Minorities In India Report, 1 November 2022
[32] US Commission on International Religious Freedom, USCIRF Annual Report 2022, 25 April 2022; Immigration and Refugee Board of Canada, IND201037.E India: Situation and treatment of suspected or perceived Sikh militants and Khalistan supporters in the state of Punjab by society and the authorities; prevalence of arrests, including methods used by the police to track them, 30 May 2022, Human Rights Watch, India: Government Policies, Actions Target Minorities, 19 February 2021; Council on Minority Rights in India, Religious Minorities In India Report, 1 November 2022; Congressional Research Service, Farmer Protests in India, 1 March 2021
I accept that the applicant lives in a Sikh minority area in the state of Uttar Pradesh. Based on the applicant’s evidence, I find that no harm has previously come to him or his family because of their Sikh religion. The applicant has raised the treatment of those involved in the farmers protests. However, he has not claimed that he or his family have had any direct involvement in the protests, and I find that he would not be involved if he were to return. I acknowledge that there is Hindu nationalism in India and that incidents of violence, harassment and discrimination are perpetrated against minorities, including Sikhs. However, based on the available evidence and the applicant’s accepted circumstances, I find that there is not a real chance that the applicant will be subject to serious harm in the reasonably foreseeable future due to Hindu nationalism if he returns to India.
Refugee and complementary protection assessment
I have found above that there is not a real chance that the applicant will be subject to harm for any of the reasons claimed and I am satisfied that no other claims arise on the accepted facts. I find that the applicant does not have a well-founded fear of persecution and is therefore not a refugee as defined in s 5H(1).
I have therefore considered the complementary protection criterion in s 36(2)(aa), namely whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to India, he will suffer significant harm. ‘Significant harm’ is exhaustively defined in s 36(2A) of the Act to mean that a person will be arbitrarily deprived of their life; the death penalty will be carried out on them; or they will be subjected to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment. I note that the ‘real risk’ threshold for complementary protection has been held to be the same as the ‘real chance’ threshold under the refugee criterion.[33]
[33] MIAC v SZQRB (2013) 210 FCR 505
For the same reasons outlined above, I find there to be no real risk of the applicant suffering significant harm for any of the reasons claimed. I find that no other protection claims arise on the accepted facts that would give rise to complementary protection obligations.
Conclusion
For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or 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 the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Mia Bailey
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 4297

5 April 2024

Key Legal Topics

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction