1919313 (Refugee)

[2022] AATA 1697

1919313 (Refugee) [2022] AATA 1697 (21 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1919313

COUNTRY OF REFERENCE:                   India

MEMBER:Anne Grant

DATE:21 April 2022

PLACE OF DECISION:  Melbourne

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

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

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

Statement made on 21 April 2022 at 1:20pm

CATCHWORDS
REFUGEE – protection visa – India – Federal Circuit Court remittal – religion and political opinion – activities in and leadership of Sikh performing and advocacy group – attacks and threats by Hindu and/or anti-Sikh extremists – inaction by police – continued threats to family in home country and activity in Australia – fear of harm from individuals, groups and government or its agents – consistent and credible evidence – country information – chance of harm applies to all parts of country – third country protection – treaty right to enter and reside in Nepal requires specified documents – passports expired and application for replacements requires declaration that the person has not applied for protection – members of family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 36(2)(a), (b)(i), (3), 65, 91R(a), (b)
Migration Regulations 1994 (Cth), Schedule 2

CASE
MIMAC v SZRHU (2013) 215 FCR 35

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicants Protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants are citizens of India and applied for the visas on 27 April 2012.  The delegate refused to grant the visas on 16 July 2012.

3. This matter is before the Tribunal after being remitted by the Federal Circuit Court of Australia on 13 June 2019. On 8 May 2014, a differently constituted Tribunal found that the first applicant was a refugee but that the applicants had a right to enter and reside in Nepal for the purposes of s.36(3) and therefore that they were not owed protection. The applicants sought judicial review of that decision and on 13 June 2019 the Federal Circuit Court remitted the matter to the Tribunal. The critical remittal grounds of the Court were as follows:

   The Tribunal misconstrued the applicant’s claims. He had not sought to initially advance a risk of persecution from Hindu extremists in India. His primary claim had been and remained that he was at risk of persecution from anti-Sikh extremists. The Tribunal’s reasons disclosed no proper consideration of the claim that the applicant faced a well-founded fear of persecution in Nepal as a result of his fervent devotion to, and promotion of his faith. Had the Tribunal done so and accepted that the applicant’s fervent devotion to, and practice of the Sikh religion in Nepal meant that he faced a real risk of persecution, this may have been dispositive of his claim for protection. That is so because a finding to that effect would mean that by operation of s.36(4), the disqualifying effect of s.36(3) would not apply, and instead the gateway to satisfaction of the criterion in s.36(2)(a) remained open.

4. On 28 July 2021, the Tribunal wrote to the applicants and requested information about several matters including:

   ·the status of Indian passports held by the review applicants;

   ·updated information relevant to the claims before the Tribunal including any submissions they may wish to make about s.36(3) of the Migration Act; and

   ·A list of witnesses that the Tribunal would anticipate calling at the hearing and a brief summary of the relevant information that they would be expected to provide.

5. In addition, the Tribunal enquired about the possibility and timing of listing the matter by video conference given Covid19 pandemic restrictions and because the applicants’ representative was currently overseas. 

6. On 4 October 2021, a statutory declaration was received from the first applicant along with documentary evidence of the sale of the family home by his father and the death of his mother.   At the same time, the representative provided information about her return to Australia, subject to travel restrictions. 

7. Prior to the hearing, the Tribunal member listened to the recording of the first Tribunal hearing on 20 December 2012 and considered the detailed decision made by the first Tribunal member which discussed the evidence given by the first applicant at that hearing.  

8. The first applicant appeared before the Tribunal on 10 February 2022 to give evidence and present arguments.  The second applicant was present during the hearing and gave some evidence.  The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

9. The applicants were represented in relation to the review. The representative attended the Tribunal hearing.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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, the applicant 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.

11. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

12. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

    owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

13. 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 a protection 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 the applicant 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’).

14. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

15. The issue in this case is whether the applicants are refugees and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to India, there is a real chance that the applicants will suffer significant harm. In this case, another issue is whether the applicants are able to enter and reside in Nepal as described in s.36(3) of the Migration Act. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    The applicants’ claims

16. The applicant’s primary claims as outlined in the application for protection, the first applicant’s statutory declarations and his evidence before the first Tribunal have remained unchanged and are usefully summarised by the member who heard the first review as follows:

    The protection visa application was lodged on 27 April 2012, and only the first named applicant (hereafter, “the applicant”) raised any protection claims. He says that he was the leader of a [Performing art] group called [Group name] which promoted cultural activities and the Sikh religion, and this led him to become the target of criminals he says were sponsored by the government, which did not condone his activities. He was subjected to telephone threats against his life, and eventually complained to the police but they refused to take any action. In 2008, when leaving the [Venue] a performance, the applicant was shot at and narrowly escaped injury. They identified the assailants and filed a first information report (FIR) with the police, but still no action was taken and the threats continued. The applicant decided to relocate his family to Australia, where his brother was already residing. In January 2010, hoping the situation had calmed down, the applicant returned to India for his brother-in-law’s wedding. On 17 January 2010 the brother-in-law was attacked with ‘sharp weapons’ but they initially thought it was just an attempted robbery and lodged an FIR on that basis. A few days later, however, the applicant received a further telephone threat warning that the attack had been meant for him. The Punjab government at that time was controlled by his political opponents and so they returned to Australia. After his return to Australia, the applicant’s father evidently received threats that the applicant would be killed if he returned, but the father kept these from him until April 2012, when he informed his father that he was about to return home. The father then disclosed the warnings he had received. In fact unidentified armed persons forced entry to their home at that time ‘tortured’ his father in an attempt to find out where the applicant was located and threatened to murder the applicant. His father also took out an FIR in relation to this incident, but again the police refused to investigate.

17. During the first Tribunal hearing the first applicant elaborated on the above claims and provided more detail.  In summary, he gave evidence as follows:

    ·    His father and grandparents told him about the 1984 Sikh genocide and he grew up with a desire to do something for his culture.  At that time, many young Sikhs were scared to follow their faith because of the genocide.  At college, he began to speak out about these things and with some friends he started an association.  The [Group] was initially a small club in a local area, with a friend [Mr A] as president.  The first applicant became its leading speaker and in 2006 when [Mr A] moved to [Country], the first applicant became president. They registered under the Society Act because they wanted to expand. 

    ·    The first applicant used his speaking opportunities at the [Group] functions to talk about the genocide, and the failure of the government to take action against the perpetrators.  Some people who heard what he was saying did not like him speaking out in this way and he began to receive phone threats.  He didn’t take them seriously at first, but then believed that his car was being followed.  He reported these things to police, but they took no action. 

    ·    In February 2008, the first applicant was at a function in Abohar. After a [performance] and a speech before an audience of around 500 people, someone tried to kill him.  When they were packing the car, 3-4 men approached and shot at them twice.  The bullets luckily missed him.  The men escaped but the first applicant heard one of them say “[Mr B], kill him, [Mr C] Kill him”.  This was reported to police and two officers came to the scene.

    ·    The first applicant contacted the police 10-15 days later and was told that it was his speeches and attempts to confront the government which had caused him to be attacked.  The police asked why he was doing such things.

    ·    The police first information report (FIR) about the incident does not refer to his political opinions and frames the attack as a dispute about the first applicant refusing to [perform] some [items] or to pay a demanded fee to a person called [Mr B].  Three other ‘assailants’ named in the report are [Mr D], [Mr C] and [Mr E].  The first applicant said that he did not know any of the attackers and just told the police what he heard.  He believes that the police put those names into the report on their own suspicion after speaking to [Mr B] who gave them the story and explanation they entered in the FIR.  He believes the complaint was framed in that way to weaken the first applicant’s report.  The first applicant cannot otherwise explain the information in the FIR.

    ·    The first applicant couldn’t work after this as he was very fearful he would be killed.  The threats continued.  While they waited for a visa to come to Australia, he stayed home, in hiding. 

    ·    Since he came to Australia, the [group] has still been operating and the first applicant has financially supported it.  However, one of the people who took over after he left later took his own life.  A number of the group members were now in Australia or [Country].  He was the only one who was attacked, as far as he was aware.  He believes it was because he was the president at that time and also because of his speeches attempting to influence people to stand up for Sikh issues.

    ·    Since he left India, his parents had received ongoing threats and intimidation from people looking for the first applicant. They didn’t tell him until 2012 when he was planning to return to India. 

    ·    The first, second and third applicants had travelled to India since their first arrival in Australia.  In January 2010 the applicants attended a close family wedding (the second applicant’s brother).  At the time, the first two applicants thought the grievances against and determination to harm the first applicant would have dissipated.  When his brother in law was attacked, they initially thought it was a random armed robbery and reported it as such to police.  However, the first applicant later received a phone call stating that the attack was intended for the first applicant. The first applicant was unable to leave the country immediately as he did not have a flexible plane ticket. 

    ·    In 2011 the applicants again returned to India but only to Amritsar where they visited the second applicant’s family and the first applicant undertook a religious retreat.  Only their parents were aware they were in the country, and the first applicant’s parents travelled to visit them.  On that visit, the first applicant did not have any trouble from people seeking to harm him. 

    ·    The applicants planned to return permanently to India in 2012 at the end of their student visas, but the first applicant’s parents told him at that time that the threats had never stopped.  The first applicant’s father’s home had been invaded and his father assaulted by people mistakenly believing that the first applicant had already returned to India.  These people wanted to know where the first applicant was. When his father told the first applicant about these events, he consulted an uncle who advised him to apply for a protection visa.

18. According to the statement of reasons for decision in review 1211764, at the second hearing which related to the applicants’ capacity to enter and reside in Nepal, the applicants raised a new claim that they fear anti-Sikh interests and Hindu extremists in both India and in Nepal.  The Tribunal member found this claim was not established based on the lateness it was raised and relying on some country information which suggested that there was no reports of ordinary Sikhs in India being ill-treated on the basis of their religion.

19. In support of the application for protection, the applicants have provided the following documents to the Department and also in the process of the first Tribunal review:

    ·Photographs of the first applicant performing on stage at events

    ·Affidavit of [Mr F], the father of the first applicant, where he confirms his son’s involvement in the [Group] and that some persons did not like the program of Sikhism and started threatening to kill him.  [Mr F] also states that in February 2008, at the end of a performance, some unknown persons fired two shots at the first applicant and his colleagues.  One shot missed the first applicant and the other lodged in the wall behind him.  This was reported to the local police station.  No action was taken.  [Mr F] also states that the first applicant continued to receive threats on phone, demanding he withdraw the FIR and discovered people following him.  They decided to send him to Australia.   [Mr F] states that after his son left, he himself was threatened on the phone by people who said they will not leave the first applicant alone.  He didn’t inform his son of these threats.  [Mr F] describes an occasion where armed men broke into his home looking for the first applicant and went away threatening that whenever he returns, he will be killed.   [Mr F] reported this to the police but no action was taken.

    ·[Group] minutes of meeting and resolution 30 May 2006 confirming the first applicant’s appointment as president of the club. 

    ·[Group] bank statements from 2012;

    ·Invitation card for a Cultural program conducted by the [Group] on 19 August 2007, 10 September 2006, and 25 September 2005 at the [Venue] in [Town];

    ·Certificate confirming registration of the [Group] since 15 June 2006.

    ·Information about [Performing art] from the Britannica Online Encyclopedia;

    ·FIR 15 April 2012 made by the first applicant’s father relating to four persons forcibly entering his house and abusing him asking about his son’s whereabouts.  The FIR reports that these men told him they would keep harassing him until he reveals his son’s whereabouts.

    ·Affidavit of [Mr G] ex vice president of the Municipal Council [Town] and also senior vice president of Shromani Akali Dal (SAD) of [District 1].  [Mr G] states that he knows the first applicant and his father personally. He confirms that the first applicant was an active member of a Sikh association, and ‘was working for the uplift of Sikhis in Punjab’ and because of this he was on the hit list of some terrorists.  [Mr G] confirms that [Mr F] had informed him about the attempt to murder the first applicant when it happened and also about the home invasion which had recently occurred.

    ·Newspaper report from 2006 describing a Sikh cultural event promoting Sikh culture and values, organised by the [Group] in [Town]. 

    ·FIR from the [District 2] Police Station dated 19 January 2010 relating to an attack on 17 January 2010.  Complaint is by [Mr H], and names three suspects.  1500 Rupees were stolen and a [mobile phone] valued at 6500 Rupees.   The FIR describes the complainant being robbed at knife point.  The FIR says that he believes that the mobile phone was snatched by particular persons and he names them.   This report was apparently made to police on the street near where the incident occurred at a bus stop.

    ·FIR from [District 1] Police Station 12 February 2008.  This FIR names the known suspects as [Mr B], [Mr I], and [Mr D] and someone called [Mr E]. The report describes [Mr B] demanding and taking 2000 rupees and threatening the closure of the event.  The event was able to proceed till 5pm after intervention by ‘respectables’.  Then the offenders named were said to argue about the first applicant refusing to [perform] particular [items] and then they shot at the first applicant twice, with the first bullet going into the ground and the second into a wall.  They raised an uproar and the offenders fled.

    ·Various education certificates, birth certificates and marriage certificates;

    ·Statement of claims by first applicant.

1. In a statutory declaration lodged with the Tribunal on 4 October 2021, the first applicant made the following arguments:   

   Situation in india and Nepal and the risks posed to me if I return:

   1.Indian govt made a new law name UAPA which means if someone raises their voice against Indian government or  say anything against a current political leader they are  imprisoned with serious charges laid similar to terrorist laws or anti national laws

   2.This implies that the freedom of speech does not exist 

   3.I am an awareness speaker and stage host and always denied the wrong things

   4.I am more active in Australia. I can provide you my photos addressing public gatherings

   5.I make people are aware of the bad policies of the Indian government back in India to suppress the voice of the  people

   6.I can criticise Indian policies against its people because I have freedom of speech in Australia

   7.Recently the Indian govt passed laws against farmers

   8.Farmers continue to protest daily on these new laws

   9.I have raised my voice in public forums in Australia against the new Indian law which has impact on farmers in India

   10.Since criticising the Indian Government, I received threatened calls from unknown callers

   11.Because I am in Australia which has freedom of speech, I can make critical statements against the new laws for farmers

   12.I have links which shows that many of the young boys who raised their voice on similar topics as myself have been arrested by the Indian Government and fake and serious charges under the anti-national UAPA law

   13.The youth are physically tortured them physically. Most of the youth are British or Canadian citizens.

   14.Because of Canada and British government pressured, the Indian govt released them after brutally torture

   15.Some of these links have already been sent to the Tribunal

   16.As I am here in Australia, they keep threatening my parents because they want me to go back under pressure and if I go back they will kill me under the name of anti-nation or religious belief

   17.As my parents can’t tolerate their pressure, they forcefully sold their property and resettle in another city. However, they found out where my parents were resettled, and they keep threatening my dad

   18.Because of the stress my mother died on [Date 1]. I have sent a copy of her death certificate to the Tribunal

   19.When my parents built their dream home  with a large sum of money, they had to sell their property at a loss. I have sent evidence of sale to the Tribunal.

   20.My mother before she died said son never come back to India as they will kill you and your family 

   21.We left our daughter with my parents when she was just less than [Age 1] now she is [Age 2] year old.

   22.I never meet her and also because of threats she is not living with my parents she lives in hidden place with my in law’s family (far from my hometown)

   23.To date no one knows that my daughter lives back in India so life is very stressful every moment she lives under threat

   24.The previously decision of AAT found serious harm to me and my family if we return to back India and advised me to resettle in Nepal

   why I cannot resettle in Nepal

   25.My son was just [Age 1] year old when we first came in Australia and now he is [Age 3] year old

   26.My son can’t even write or read his supposed to be mother tongue Punjabi language and hence will not be able to settle in a third world country like India

   27.My son was junior school sports leader in [School]

   28.He now plays [Sport 1] for [Suburb] city [Sport 1] club as a [Team position] and one of the best player in his team under [Age 3]

   29.His dreams is to become a [Sport 1] player and represent Australia on international level

   30.He also has won a lot of medals in [Sport 2]

   31.He is stressed and depressed when I discuss with him about the visa and the possibility to return to India. We will give more evidence of this at the hearing.

   32.I am aware of the cross border treaty between India and Nepal where a visa is not required to cross the border

   33.If I’m not safe in India (accordingly ATT previous decision) so how can I be safe in Nepal because anybody can cross the border and kill me.

   34.According to reports there are so many illegal or criminal activities going on  Nepal/India border

   35.Hindutava is active in Nepal

   36.An Indian cannot buy a business or property or home in Nepal unless he/she holds permanent residency or citizenship of Nepal or if an individual marries a Nepali.

   37.There are so many documentaries and reports that show that Nepali people forcefully captured houses and businesses from those who are not citizens or resident of Nepal

   38.Nepal is also under pressure from China as China is forcing Nepal to merge with them and stand against India

   39.In previous decision AAT said that I can resettle in Nepal because I have a valid Indian Identification. However my son and my wife have expired Indian passports

   40.I do not hold an Indian Driver’s license because I handed over my Indian driver’s license when I applied for a  Victorian license

   41.We do not have any valid India id to enter Nepal

   42.If the treaty between India and Nepal changes due to pressure from China who will take responsible of my safety and my family

   43.The AAT found serious harm for me to return to India hence the question of Indian ID does not exist

   44.I cannot put my family and my life in risk and go to Nepal.

   45.My family and I live in Australia from last 13 years

   46.We have an extensive friend circle even most

   47.My wife’s family live in Australia

   48.My wife’s sister [Ms J] represented Australia twice in the [Event]

   49.My family has a large social network in Australia

   50.I do volunteer work with some organisations like [Organisation 1]

   51.Our volunteer group [Organisation 1] do a lot of volunteer work during  pandemic situation and the bush fire

   52.Our volunteer group provided food to needy people in bushfire and during the pandemic covid pandemic

   53.Our volunteer group organises camp for  domestic violence situations 

   54.I am also member of one of the oldest club [Organisation 2]

   55.I attached my photos which shows my volunteer work and my Australian family

2. The first applicant provided proof that his father had sold their property in [Town] in 2020 and the certificate of his mother’s death on [Date 1]. 

3. At hearing, the first applicant gave evidence. He stated that he continues to fear persecution in India due to his outspoken Sikh and community activism, and that the persecutors he fears in India could follow him to Nepal and easily kill him there.  He also submitted that he and his family would fear persecution in Nepal due to their Indian nationality and Sikh faith and that they would find it impossible to reside permanently in Nepal.  He also referred to his son’s lack of literacy in Punjabi, let alone Nepali and his opinion that Nepal is a ‘third world country’ where his son would find it impossible to reside.

4. At the hearing, the Tribunal indicated that it had listened to recorded evidence from the first Tribunal hearing and subject to some matters that need to be clarified, was satisfied, as the first tribunal member had been, that at that time, there was a real chance that the first applicant would be persecuted if he had returned to India by political/religious opponents of his Sikh activism.  However, it was noted that the Tribunal is considering the applicants’ claims afresh and making a decision in 2022, some 8 years after the original hearing.  Consequently, the applicants were reminded that the Tribunal needs to be satisfied that the applicants face a real chance of persecution now or in the reasonably foreseeable future if they return to India.  The first applicant (and at times the second applicant where indicated) readily responded to the Tribunal’s questions, and gave evidence as follows.

5. The first applicant said that his parents sold the family home because they were still getting threats there from the people who want to harm the first applicant.  He expressed a view that his mother’s death from a brain haemorrhage was because of the pressure they had experienced and worrying about the first applicant’s persecutors.  His father now lives a reclusive life in a small village away from [Town], where they previously lived.  Before he sold the house, people were often hanging around, outside the family home.  Since he sold the house and moved, that has stopped.  But he still gets threatening phone calls from unidentified numbers or caller id blocked numbers. He keeps a very low profile.  He is waiting in the hope that he will be granted a visa by [Country] or Australia.  The first applicant has a younger sister in [Country] who has applied for a visa for their father.  His brother is also trying to get a visa for him to come to Australia but had not been able to do so. The family moved the applicants’ [daughter] to live with the second applicant’s family near Amritsar when the first applicant’s family faced threats from his persecutors.  She remains there and the applicants expressed a fear that someone will discover that she is in India and is the first applicant’s daughter – and that she will be targeted for harm if they discover it.  The family conceals that information as best they can.

6. The second applicant returned to India in late 2009 so that she could give birth to their [second child] in India, with the support of her family.  The applicants explained that their insurance didn’t cover pregnancy and it was costly for them to have the baby in Australia.  Also, of course, the second applicant doesn’t speak English and they decided that she should have the child in India.  The first applicant then returned to India in early 2010 so that he could meet their child and register her birth and see family. During this visit, the second applicant’s brother was getting married. On 19 January 2010 (as outlined in the FIR) her brother was attacked in what seemed to be a robbery whilst he was out doing ‘wedding business’.  It was reported to police and the family believed it was a random attack until a couple of days later the first applicant received a phone call saying he was the person who was intended as the victim.  During evidence the second applicant described how this event was terrifying for the family and they also believed they were being watched when they went outside the home.  She noted that this added a pall over what was supposed to be a happy family event. 

7. The applicants’ second child was born on [Date 2] in India. [In] February 2010 the second applicant returned to Australia and the first and third applicants followed [in] March 2010.  In that period the first applicant stayed mainly at home with his in-laws and also visited a Sikh holy site nearby.  He couldn’t return earlier to Australia because his fare was not flexible.  The applicants explained that they left their [daughter] in India because the second applicant was studying and they were not in a strong financial position to support her. They speak to her often via WhatsApp. 

8. The applicants returned to India [in] January 2011.  The purpose was the first applicant’s attendance at a religious ‘retreat’ at a Sikh Temple near Amritsar and so that the family could visit their daughter and families.  However, because of what had happened the last time they were in India, this time they did not ‘announce’ on social media or anywhere else that they were returning to India.  The first applicant’s family came to Amritsar to see them – they did not go to their home village. On this visit, the family did not receive any threats or harm, but they also kept a low profile. 

9. The first applicant gave evidence that he has continued to be involved in Sikh activism from Australia.  He is a member of a [Performing art] club here and also contributes to Sikh community programs which respond to bushfire and pandemic disasters.  The first applicant spoke animatedly about what he saw as the oppressive new laws in India aimed at stifling activism and criticism of the government by minority organisations such as Sikhs and Christians and also about the recent protests by farmers about changes to laws affecting them in India.  He stated that if he were to return to India, he would resume his involvement with Sikh organisations promoting Sikh identity and culture and would also take every opportunity to speak out against discrimination and persecution of Sikh and all minority communities in India, by the government or any other group or authority.  He referred to the imprisonment of Canadian and British citizens in India who were arrested and jailed for speaking out against the government.  They were later released after pressure from their countries but it was noted that if they had been Indian citizens, they would not have been so lucky. 

10. The first applicant also expressed a view that police and other officials in government in India are corrupt and his enemies will come to know that he has applied for a protection visa in Australia.  This is because their Indian passports have expired and they cannot renew them without their application for protection being known by the Indian government, who could then pass that information on to his persecutors. The first applicant claims that they no longer have sufficient Indian identification to even travel to Nepal without a passport.   The first applicant surrendered his Indian drivers licence when he got an Australian drivers’ licence.  He no longer has a voter identification or even an Aadhar card.

11. In relation to Nepal, the applicants both expressed their belief that they would not be safe in Nepal.  Due to the open border between India and Nepal, their Indian persecutors or their agents could easily travel to Nepal and harm them.  The first named applicant had argued that there are very few Sikhs in Nepal and the Tribunal noted that it had found reports of a vibrant Sikh community in Kathmandu.  The applicants conceded that there was an established Sikh community in Nepal but it was small and the first applicant’s activism within that community would therefore be ‘visible’ immediately he started to speak out. 

12. The first applicant stated that he would continue to speak out about issues affecting the Sikh Indian community and if necessary against the Indian government from Nepal.  He continues to and will continue to raise his voice about Sikh issues and also about other issues affecting minorities and injustice in India.   The first applicant said that he would continue to speak out against the wrongdoings of the Indian government and promoting Sikh culture wherever he lived.  Even here in Australia he had received threatening calls about his participation in protests and any speeches he gives where he criticises the Indian government.  But he doesn’t believe they can do anything to him here.  When asked how they would get his phone number, the first applicant said his number is linked to his social media accounts, and it would also be available from other members of the Sikh community.  He noted there are Indians here in Australia who would locate and provide his phone number to people in India.

13. The applicants claim that they will face exactly the same chance of harm in Nepal from the same persons who wish to harm them as they would face in India.  That is, they can cross the border, kill them and then return to India and escape the Nepalese Authorities.  They also fear that Hindu nationalists in both countries will harm them, particularly when the first applicant continues his activism on behalf of the Sikh community in either country.

    Fear of harm from political/Sikh opponents. 

14. The applicants have given consistent evidence about their claims over the period since the application was lodged.  Having listened to the first hearing and also taken evidence from them, the Tribunal formed a view that the first and second applicants were reliable and credible witnesses. In considering the claims and making findings below, the Tribunal has taken into account the consistency and credibility of the applicant’s evidence before the first Tribunal and also before the current Tribunal. 

15. The first applicant has provided consistent and plausible evidence about his involvement in the [Group], and his support for and public speeches about Sikh culture and customs in his home area of [Town].  The Tribunal accepts that the first applicant was a president of the organisation and that he took every opportunity he could to educate fellow Punjabi citizens about the history of repression and harms inflicted on the Sikh minority in India.  The Tribunal accepts that there are members of political parties in Punjab, (including the Shiromani Akali Dal which has a large Sikh membership) who, despite their own Sikh heritage, oppose the promotion of Sikh history and Sikh interests for fear of upsetting coalition partners or shining a light on their own failure to represent their community in government and in politics.  In particular, the Tribunal accepts that the first applicant has angered the family of a prominent local political family (the [Bs]) and that people associated with them have repeatedly attacked and threatened the first applicant since 2008.  The Tribunal accepts that the first applicant received threats and demands that he stop promoting Sikh history and culture after he became president of the club. The Tribunal accepts that he reported the threats and the fear that he was being followed to police but no action was taken. 

16. The Tribunal accepts that the first applicant was shot at on 12 February 2008 after speaking and [performing] at a cultural event conducted by the [Group].  The Tribunal accepts that the FIR provided in relation to that incident does not represent a faithful description of the events and is also satisfied that no action was ever taken against the attackers, despite them having been potentially identified. The Tribunal accepts that the first applicant did not know or identify his assailants but heard them speak some names which he reported to police.  The incident took place shortly after a public event with several hundred attendees.  The Tribunal considers it unremarkable that someone identified the assailants as they fled the scene and reported that to police. Nonetheless, as noted, despite that identification, no action was taken against the assailants and instead, the first applicant was chastised for speaking in the way he had done and the incident treated as (and recorded by police as) a dispute over the program of performance.

17. At the time of the hearing, the first applicant observed that the same people were still in power in his part of Punjab.  Consequently, he feared that they would have the power and capacity to target him as soon as he returns to India, with impunity.   He also noted that they are not loyal to their faith but choose to side with whichever political party holds power, so that they always find themselves in positions of influence and power themselves.  They do not like to hear issues raised which might endanger their coalitions.   

18. Subsequent to the hearing, the Tribunal’s research disclosed that it appears that the SAD and Congress party representatives in [District 1] have lost their seats to new AAP members elected in February 2022, and that the AAP is now the governing party in the seat of Punjab[1].  According to news reports, the AAP was only established in 2012 with an initial focus on anti-corruption.  There are many reports which suggest that the candidates from the AAP are not from the ruling political elite, which in India are often based on family and caste.  This historic change is therefore remarkable in many respects and potentially reflects a shift in the power balance in Punjab.   

    [1] type="1">

19. The Tribunal considered whether it was necessary to discuss the change in government with the applicants, given that it may, on one view, weaken the first applicant’s claims because  the people who seek to harm him no longer appear to be directly in positions of political power.  However, the Tribunal notes that the change in leadership does not necessarily weaken the grievances against the first applicant: indeed, his perceived opposition to the political elite would potentially be heightened by their ‘fall from grace’.  The Tribunal considers that it is plausible that the deposed political elite and their followers would continue to harbour a desire to take revenge against and intimidate all opponents.  In addition, the Tribunal notes that this apparent shift in Punjab politics does not necessarily reflect a shift in national politics and power in India, with Narendra Modi’s BJP currently improving its’ position on a divisive Hindu nationalist and anti Muslim stance.[2]   There is no basis on which the Tribunal could find that those politicians and families who have lost power in Punjab will simply agree to their loss of status and accept the change without staging a resurgence of some kind over the coming period, such as by further targeting their perceived opponents and or aligning themselves with powerful new incumbents in the very manner suggested by the first applicant. 

    [2] >

    The Tribunal also noted that India’s political history reflects political violence as a reality.  Incidents of political violence occur throughout India, sometimes resulting in deaths. There are regular media reports of political violence throughout India, particularly around elections.[3] During 2020, at least 321 civilians, security personnel, and militants were killed in conflict-related violence in Indian-administered Kashmir,[4] and about 276 civilians, security personnel, and militants died in 2019.[5]  The National Crime Records Bureau reports that, in 2020, 55 people were murdered for political reasons in India.[6]

    [3] 'RSS man hacked to death in Kerala’s Palakkad', Indian Express, The, 16 November 2021, 20211125105628; 'Bengal BJP Leaders Protest Against "Violence" Targeting Party Workers', Press Trust of India (PTI), 21 July 2021, 20210722135418; 'Amidst Reports of Deaths in Post-Poll Violence in West Bengal, Banerjee Appeals for Peace', Wire, The, 04 May 2021, 20210505152213; 'Two dead as violence mars election in Indian battleground state', Agence France Presse (AFP) - France, Arab News, 01 April 2021, 20210413110123; 'Bengal saw 693 cases of violence during 2019 Lok Sabha polls', Times of India, The, 04 March 2021, 20210312111033; 'Two dead in clash between Congress, SAD workers in Punjab’s Moga district; Harwinder Kaur's husband arrested', Times Now, 10 February 2021, 20210928160717; 'Political row erupts over TDP leader’s murder', Srinivasa Rao Apparasu, Hindustan Times, 05 January 2021, 20210312094013

    [4] 'Freedom in the World 2021 - Indian Kashmir', Freedom House, 2 June 2021, p.13, 20210602144107

    [5] ‘Freedom in the World 2020 - Indian Kashmir’, Freedom House, 4 March 2020, F. Rule of Law, 20200305104709; ‘Country Reports on Human Rights Practices for 2019 - India’, US Department of State, 11 March 2020, p.4, 20200312122934

    [6] 'Crime in India 2020 - Statistics Volume I', National Crime Records Bureau, Ministry of Home Affairs, Government of India, 15 September 2021, p.165 (Table 2A.2), 20210916082147

20. Additionally, the Tribunal noted that internal violence between the members of the former coalition has actually been reported in February 2022 in the first applicant’s home town of [Town].[7]  The Tribunal is satisfied that the political situation in the first applicant’s home area is volatile and that ongoing political grievances and political related violence remain a feature of that volatility. 

    [7] [Reference deleted].

21. After considering these developments in Punjab politics, recent reports and country information, the Tribunal is satisfied and finds that the very recent change in political leadership in Punjab does not represent a diminished chance of serious harm for the first applicant from the people who have targeted him in the past and did not consider it necessary to hold a hearing to discuss that change with him.

22. The Tribunal accepts that the harm feared by the first applicant involves serious harm.  It also involves systematic and discriminatory conduct. The essential and significant reasons for the persecution feared by the first applicant are the combined convention reasons of his faith and his political opinion.    

23. The first applicant referred to his view of the Modi Government’s amendment of and use of the UAPA (Unlawful Activities Prevention Act) over recent years to arrest, detain and harass people who speak out against the Government in any way.  According to general country information and reports, the Modi government amendments now allow authorities to designate someone as a terrorist and detain them without producing any incriminating evidence.  It has meant that individuals spend months or years in jail without being found guilty.[8]  Al Jazeera reports that this power has been used in recent years with increasing frequency.  In that same report, reference is made to an 84 year old Jesuit priest who died in custody and who maintained his innocence, saying he was singled out for his work and writings on caste injustice and the struggles faced by marginalised groups.  Prominent Jurists are reported as expressing dismay over the use of UAPA to crush dissent.

    [8] For example ‘Misused, abused’: India’s harsh terror law under rare scrutiny | Human Rights News | Al Jazeera 16 August 2021.  This news article gives examples of a 24 year old in Maharashtra State who was arrested for plotting to kill Indian politicians. He was held in prison for nine years before being released after it was acknowledged he was wrongly jailed. 

24. The Tribunal has taken into consideration and has accepted that the first applicant’s parents were continually harassed by people looking for the first applicant until they felt that their only option was to sell their family home in 2020.  The Tribunal accepts that his father continues to receive calls from private numbers demanding to know the whereabouts of the first applicant and making threats to harm him when he returns to India.  The Tribunal accepts the first applicant’s claims as being established.  The Tribunal considers that this is a case where the passage of time has not reduced the real chance of serious harm by any  significant degree.  The Tribunal considers that the first applicant would be an activist in India and would be outspoken about Sikh and any community issues which arise, and also about his objection to what he sees as oppression in the ruling government’s agenda and actions.  This would bring him to the attention of his former persecutors and potentially the authorities in India as an activist. In the context of India’s political environment, and particularly bearing in mind the volatility of that environment, the Tribunal considers that the first applicant would potentially make new enemies in any new area even if he were to relocate within India.  The Tribunal has accepted that he intends to continue his activism wherever he resides.

25. The Tribunal is satisfied that there is a real chance that the first applicant will face serious harm (being physically assaulted, murdered, imprisoned or harassed) now or in the reasonably foreseeable future if he returns to India from people opposed to his pro Sikh and anti government activism.  The real chance of harm is highest in Punjab where his former home was; however given his likely profile as a vocal and prominent Sikh and community activist in any new area where he might choose to reside throughout the country, the Tribunal considers that the real chance of persecution faced by the first applicant persists throughout India.  In reaching that conclusion, the Tribunal is satisfied that there is also a real chance that he will face arrest and detention by people associated with the Government of India as a consequence of him expressing dissatisfaction with the policies and conduct of the Indian government; as well as a real chance that he will face ongoing harassment, threats and harm from his existing enemies in Punjab and from anti-Sikh or political extremists in any new area where he chose to reside.

26. The first applicant has lodged police reports about threats and harm he and his parents have experienced but to no effect.  Recent country information reflects that corruption and resource shortages continue to affect the capacity of the Indian police to enforce India’s laws and properly investigate and prosecute crime.  

27. Police resources, training and staffing are limited in some areas, and the effectiveness of law enforcement and security forces varies widely throughout the country.[9] While overall police strength has increased with higher government expenditure, the police lack capacity in infrastructure such as vehicles, weaponry and communications.[10] Corruption within the police force remains a problem.[11] Citizens face substantial obstacles in the pursuit of justice, including demands for bribes and difficulty getting the police to file a First Information Report, which is necessary to trigger an investigation of an alleged crime.[12]

    [9] 'DFAT Country Information Report India', Department of Foreign Affairs and Trade (DFAT), 10 December 2020, pp.60-61, 20201210103716

    [10] ‘Police Reforms in India’, PRS Legislative Research, June 2017, pp.1, 4-7 & 12, CISEDB50AD8815; ‘IND106120.E India: Surveillance by state authorities; communication between police offices across the country, including use of the Crime and Criminal Tracking Network and Systems (CCTNS); categories of persons that may be included in police databases; tenant verification; whether police authorities across India are able to locate an individual (2016-May 2018)’ Immigration and Refugee Board of Canada, 25 June 2018, OG690C1A332; ‘IND200259.E - India: Police databases and criminal tracking, including relationship with the Aadhaar systems and tenant verification; capacity to track persons through these systems (2019-June 2020)’, Immigration and Refugee Board of Canada, 11 June 2020, 20200712215348

    [11] 'Freedom in the World 2021 - India', Freedom House, 3 March 2021, p.14, 20210304092913

    [12] 'Freedom in the World 2021 - India', Freedom House, 3 March 2021, p.14, 20210304092913

28. In addition, security forces have used arbitrary or excessive force against demonstrators on several occasions.  Police have used firearms and less-lethal weapons such as teargas, indiscriminate baton charges and water cannons against demonstrators.[13] In January 2022, six police in Uttar Pradesh were suspended for using excessive force on job applicants protesting alleged irregularities in a railway recruitment exam.[14] In December 2019 and January 2020, Uttar Pradesh police shot and killed at least 14 protesters against the 2019 Citizenship (Amendment) Act.[15] In May 2018, police opened fire on protesters seeking the closure of a copper smelter in Tamil Nadu, resulting in 13 deaths and at least 102 people injured.[16]

    [13] 'Indian police use violence as a shortcut to justice. It's the poorest who bear the scars', Mohit Rao, Cable News Network (CNN), 02 December 2020, 20201208093237; 'Briefing Paper on the Unlawful Use of Force by Uttar Pradesh Police to Quell Anti-Citizenship Amendment Act Protests', International Commission of Jurists, 16 January 2020, pp.1-2, 20200117152713

    [14] ‘2 Arrested, 6 Cops Suspended After Clash With Students At Prayagraj Station’, NDTV, 26 January 2022, 20220203095713

    [15] 'Briefing Paper on the Unlawful Use of Force by Uttar Pradesh Police to Quell Anti-Citizenship Amendment Act Protests', International Commission of Jurists, 16 January 2020, p.3, 20200117152713

    [16] ‘No Warning: Witnesses describe how police shot and killed smelter protesters in Thoothukudi’, Reuters, 29 May 2018, CXBB8A1DA28532; ‘Human Rights Watch World Report 2019’, Human Rights Watch, 17 January 2019, p.271, 20190118091502

29. In the first applicant’s case, these limits on police effectiveness and willingness to provide protection have been demonstrated by the failure to take the first applicants’ reports and the events that they relate to with appropriate seriousness.  The police have proven themselves unwilling to investigate and prosecute the perpetrators of serious crimes against the first applicant and instead, questioned the first applicant’s decision to speak publicly about issues affecting the Sikh community; suggesting by implication and by their subsequent inaction that he was providing his attackers with a legitimate reason to attack him. 

30. The Tribunal also noted that, in news reports referred to above, recent intra-party violence (attempted murder, in that case) in the first applicant’s hometown were described in a manner which suggested that they would be dealt with ‘in-house’ by the political party involved rather than being properly investigated and prosecuted by police. The Tribunal considers that, taking into account the country information and the first applicant’s experiences with the Indian police, the Indian government and or its’ police are not willing or able to provide the first applicant with protection from the persecution he fears.  Further, the police are potentially the agents of the government who will persecute the first applicant if he continues to speak out about perceived failings of the Modi lead government, throughout the country. 

31. The Tribunal finds that the applicants are unable to avail themselves of the protection of the State from the persecution they fear.  The Tribunal also finds that the applicants are unable to relocate to a different State or part of India because the applicant’s activism and public profile in any new part of the country would enable his existing enemies to find and harm him in a new part of the country; and also there is a real chance that he will suffer serious harm from Government agents seeking to silence dissent in any new part of the Country.

32. The reason for the persecution feared by the applicant are the combined reasons of his Sikh faith and his political opinion due to his public activism on behalf of the Sikh community and other minority groups in India. That convention reason is the essential and significant reason for the persecution he fears, as required by s.91R(a).  The first named applicant fears that he will be killed, arrested and detained without trial if he returns to India.  The persecution involves serious harm to the first applicant as required by s.91R(b). The persecution involves systematic and discriminatory conduct by his persecutors as demonstrated by their continuing harassment of him prior to his departure, his parents after his departure, and their demands that he cease promoting or representing Sikh community views, and remain silent about issues he sees as critical for social justice in India.

33. The Tribunal concludes that the first named applicant has a well-founded fear of persecution in India from locals in [District 1] opposed to his activism on Sikh and community issues and also from agents of the Indian government due to his political opinions opposed to the government and what he sees as the oppression of minorities and the suppression of dissent in government policy and actions by the Government of India (and its’ agents). 

34. The information and evidence before the Tribunal does not suggest that the second and third applicants would be targeted for harm by any of the persons or authorities who would persecute the first applicant (or by any other person or authority in India).   The Tribunal notes that they have never been targeted for harm in the past whilst in India, (even when they were in India in late 2009 and early 2010.)   The Tribunal is not satisfied that there is a real chance that either the second or third applicant will be persecuted for any reason, (including their faith, their political opinions or because they are members of the first applicant’s family) by people associated with the first applicant’s political enemies or the Government of India due to the first applicant’s activism. 

    Fear of Harm from Hindu Extremists and or Anti-Sikh extremists.

35. The Tribunal has already found that the first applicant has a real chance of persecution in India due to his faith and his political opinion.  On the facts and due to the passage of time since the applicants lodged their application for protection, the issue of whether the first applicant and his family face a real chance of persecution from Hindu or Anti-Sikh extremists in India also arises for consideration.

36. Country information suggests that there has been increased Hindu nationalist militancy under India’s BJP government. In April 2020, Bertelsmann Stiftung reported that the most problematic development was the growing influence of hard-line Hindu nationalist groups.[17] Hindu extremist groups affiliated with the BJP have attacked Muslims and Dalits over allegations they traded or killed cows for beef.[18] There are also reports that Hindu extremist groups like Bajrang Dal, the militant wing of Vishwa Hindu Parishad, have attacked Christians.[19]

    [17] ‘BTI 2020 Country Report - India’, Bertelsmann Stiftung, 29 April 2020, p.4, 20200501165959

    [18] 'Freedom in the World 2021 - India', Freedom House, 3 March 2021, p.9, 20210304092913

    [19] 'Indian Christians urge president to ensure their safety', UCA News (UCAN), 20 January 2022, 20220121111314; 'Jesus statue smashed in spate of attacks on India’s Christian community', Hannah Ellis-Petersen, Guardian, The, 27 December 2021, 20211230160459; 'Bajrang Dal Activists Storm Christian Prayer Meet in Karnataka's Belur', Wire, The, 30 November 2021, 20211201101905; 'Christian couple assaulted by Hindu nationalists', Christian Solidarity Worldwide, 23 April 2021, 20210428112259

37. Country information also suggests that Sikhs are subject to harassment by Hindu nationalists in India. According to DFAT, Sikhs in India generally face a low level of official and societal discrimination and violence.[20] The Pew Research Centre indicates that 14 per cent of Sikhs think that there is a lot of discrimination against Sikhs in India today[21], and 18 per cent report feeling personally discriminated against due to their religion.[22] However, there are reports that Hindu nationalists have harassed Sikhs and pressured them to reject religious practices and beliefs that are distinct to Sikhism.[23] Many Sikhs from Punjab participated in the farmers’ protests of 2020-2021[24], and there are reports of harassment and attacks against protestors, including in diaspora countries like Australia.[25] 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.[26]

    [20] 'DFAT Country Information Report India', Department of Foreign Affairs and Trade (DFAT), 10 December 2020, p.33, 20201210103716

    [21] 'Religion in India: Tolerance and Segregation', Pew Research Center, 29 June 2021, p.58,  20210630144817

    [22] 'Religion in India: Tolerance and Segregation', Pew Research Center, 29 June 2021, p.60,  20210630144817

    [23] ‘2017 Annual Report’, United States Commission on International Religious Freedom, April 2017, p.152, CISEDB50AD3969; ‘Country Policy and Information Note – India: Religious minorities’, UK Home Office, May 2018, p.22, OG9EF767926;  ‘United States Commission on International Religious Freedom 2018 Annual Report’, US Commission on International Religious Freedom, 25 April 2018, p.163, CIS7B83941863; '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)', Immigration and Refugee Board of Canada, 16 December 2019, 20200310144059

    [24] 'India’s farmers have won – but this doesn’t mean Modi is softening', Guardian, The, 23 November 2021, 20211124091458

    [25] 'Violence Strikes, and India’s Farmers Want You to See It', Emily Schmall, Hari Kumar and Mujib Mashal, New York Times, The, 22 October 2021, 20211027102553; 'Man convicted in Sydney attacks on Sikhs gets rousing welcome in Haryana', Hindu, The, 18 November 2021, 20211124113505; 'A man who committed alleged hate crimes in western Sydney becomes a hero in India', Kishor Napier-Raman, Crikey, 13 August 2021, 20210903094659

    [26] 'India: Government Policies, Actions Target Minorities', Human Rights Watch, 19 February 2021, 20210224101305; ‘Briefing Notes: Group 62 – Information Centre for Asylum and Migration’, BAMF - Federal Office for Migration and Refugees (Germany), 12 April 2021, p.5, 20211026155038; 'Farmer Protests in India', Congressional Research Service, 1 March 2021, p.5, 20210317120407

1. If the first applicant were to return to India as an ordinary citizen, without engaging in political and public activism on behalf of the Sikh and other minority communities, the Tribunal would not consider that there was a real chance that he would suffer harm of any kind because of his Sikh faith from Hindu nationalists or anti-Sikh extremists.  However, that would not be the case.  The Tribunal is satisfied that he will continue to agitate and educate his community about Sikh historical  issues and ongoing issues he perceives as demonstrating that the government of India is seeking to oppress political and community dissent. The Tribunal is satisfied that he would continue to publicly speak about social and religious justice issues, seeking representation and equality for all Indian citizens.  

2. Taking into account the country information as outlined above, and particularly in light of the first applicant’s existing profile and intentions, the Tribunal finds that the first applicant would face a real chance of serious harm (being attacked, harassed, physically assaulted or killed) by Hindu nationalists or anti-Sikh extremists throughout India because of his political opinion and the perception that he is opposed to the ruling government of India and the ideals of Hindu nationalists. This is particularly so when considered cumulatively with the first claims, discussed above. However, the Tribunal does not consider that there is a real chance that the second and third applicants will be persecuted by Hindu nationalists or anti-Sikh extremists in India as they would not have any public profile.

3. The essential and significant reason for the persecution by Hindu and anti-Sikh extremists are the convention reasons of the first applicant’s religion and political opinion.  He fears that he will be physically assaulted or killed, harassed or potentially detained. The persecution he fears on this claim involves serious harm, and systematic and discriminatory conduct.  Reference is made to the Tribunal’s reasoning above and for the reasons there outlined, the Tribunal finds that State protection from the persecution he fears is not available and relocation within India to avoid the persecution is not an option.

   Conclusion

4. The Tribunal finds that the first applicant is outside his country of nationality and due to a well-founded fear of persecution, is unable or unwilling to seek the protection of his country of nationality. For the reasons given above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations. Therefore, the first named applicant satisfies the criterion set out in s36(2)(a).

5. The Tribunal is not satisfied that the other applicants are persons in respect of whom Australia has protection obligations for the purposes of s36(2)(a) or (aa). However, the Tribunal is satisfied that the second applicant is the wife of the first applicant and the third applicant is his son, and that they are members of the same family unit as the first named applicant for the purposes of s 36(2)(b)(i). As such, the fate of their application depends on the outcome of the first named applicant’s application. It follows that the other applicants will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.

   Third Country Protection

6. Subsection 36(2) of the Act, which refers to persons in respect of whom Australia has protection obligations, is qualified by subsections 36(3), (4), (5) and (5A) of the Act. They provide as follows:

   Protection obligations

   (3) Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.

   (4) However, subsection (3) does not apply in relation to a country in respect of which:

   (a) the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or

   (b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.

   (5) Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that

   (a) the country will return the non-citizen to another country; and

   (b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.

   (5A) Also, subsection (3) does not apply in relation to a country if:

   (a) the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and

   (b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.

7. This means that where a non-citizen in Australia has a right to enter and reside in a third country, Australia will not have protection obligations in respect of that person if he or she has not availed himself or herself of that right, unless the conditions prescribed in either s.36(4), (5) or (5A) are satisfied, in which case the s.36(3) preclusion will not apply.

8. The Full Federal Court in MIMAC vSZRHU (2013) 215 FCR 35, has held that the term ‘right’ in s.36(3) should not be restricted to a right in the strict sense which is legally enforceable. Rather, it should include the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of enforcement; or a liberty, permission or privilege which does not give rise to any particular correlative duty upon the state in question.

9. In determining whether these provisions apply, relevant considerations include: whether the applicant has a liberty, permission or privilege lawfully given to enter and reside in a third country either temporarily or permanently; whether he or she has taken all possible steps to avail himself or herself of that right; and whether s.36(3) does not apply because of the operation of s.36(4), (5) or (5A).

10. The 1950 Treaty of Peace and Friendship between the governments of India and Nepal provides for the movement of people between the two countries. Under the 1950 Treaty of Peace and Friendship, Indian nationals do not require a visa for Nepal and movement of Indians or Nepalis across the border is largely unhindered.[27] The 1,800 kilometre border between India and Nepal is porous, and there is little recorded data on the movement of people.[28]

    [27] 'Prohibitory orders extended for a week with eased restrictions', Ojha, A, Kathmandu Post, 20 June 2021, 20210628115733; ‘The Impact of COVID-19 on Migrants in Asia and the Pacific - Rethinking Resilience’, USAID, December 2020, pp.41-42, 20210709155324; ‘DFAT Country Information Report: Nepal’, Department of Foreign Affairs and Trade, 1 March 2019, pp.31-33, 20190301094546

    [28] ''Prohibitory orders extended for a week with eased restrictions', Ojha, A, Kathmandu Post, 20 June 2021, 20210628115733; ‘Migration in Nepal - A Country Profile 2019', International Organization for Migration (IOM), 13 December 2019, p.145, 20210707111755

11. In response to the COVID-19 pandemic, authorities introduced restrictions on the movement of people across the India-Nepal border. Movement across the India-Nepal border was restricted during the first COVID-19 surge in 2020, and again in 2021.[29] Migrant workers from Nepal were particularly affected by the various lockdowns and restrictions imposed by the Indian government.[30]  Many were stuck at the border for extended periods.[31] Public transport across the border was halted in April 2021, and flights were limited, but there are reports that, although the border was officially closed, many people still moved across the border in search of work.[32]

    [29] 'Pandemic Reopens Contentious Issues in Nepal-India Ties', Observer Research Foundation (India), 12 January 2021, p.3, 20210210103954;

    [30] 'Prohibitory orders extended for a week with eased restrictions', Ojha, A, Kathmandu Post, 20 June 2021, 20210628115733; 'Pandemic Reopens Contentious Issues in Nepal-India Ties', Observer Research Foundation (India), 12 January 2021, p.3, 20210210103954

    [31] ‘The Impact of COVID-19 on Migrants in Asia and the Pacific - Rethinking Resilience’, USAID, December 2020, pp.48-49, 20210709155324

    [32] 'Migrant workers start returning to India in search of jobs', Budhaair, M, Kathmandu Post, 06 June 2021, 20210607150746

12. The first applicant argued that his own passport expired more than 5 years ago, and his wife and son do not have current passports.   He stated that they do not have sufficient travel documents to enable them to travel to Nepal. The first applicant argued that because of their protection application, they would be unable to renew their passports. Also, he has no current Indian drivers licence, voter id or Aadhaar card.  He has no documents which would satisfy the requirements of the Nepali government to allow the family to enter Nepal, even if they were to arrive directly in Kathmandu.

13. In relation to the applicants’ passports, according to the Consulate of India website in Canberra, Indian nationals in Australia can apply online for new passports.  However, the Tribunal has noted the first applicant’s evidence and researched the documents required as part of the application process.  The first applicant is correct when he states that he would be asked about his protection visa, and that the Indian Government would therefore be aware of his application.  As the passports expired more than one month ago, the applicants would each be required to lodge a Form 1[33]  which is a declaration which includes the following undertaking:  “I HAVE NEITHER TAKEN ASYLUM NOR APPLIED FOR  ASYLUM/REFUGEE STATUS”.  None of the applicants would be in a position to make such a declaration.

    [33] VISA APPLICATION FORM (vfsglobal.com)

14. The Government of Nepal website providing guidance to Indian nationals seeking to enter Nepal includes the following information[34]: 

    [34] Information for Indian Nationals (immigration.gov.np)

    INFORMATION FOR INDIAN NATIONALS

    Identity documents required for Indian citizen going to/coming from Nepal by Air:-

    1.Valid National passport.

    2.Photo Identity card issued by the Government of India/State Govt./UT Administration in India to their employees or Election ID card issued by Election Commission of India.

    3.Emergency Certificate issued by Embassy of India, Kathmandu.

    4.Identity Certificate issued by Embassy of India, Kathmandu.

    5.Persons in the age of group of above 65 years and below 15 years would be exempted from the requirement of approved identity documents mentioned at SL. No. (i),(ii),(iii) and (iv). However, they must have some documents with photograph to confirm their age and identity such as PAN card, Driving license, CGHS card, Ration card etc.

    6.Children between the age group of 15 to 18 years may be allowed to travel between India and Nepal on the strength of Identity certificate issued by the principal of the school in the prescribed performa.

    7.In case of a family (family means husband wife, minor children and parents) traveling together, the approved identification document at SL. NO.(i) ),(ii),(iii) and (iv) would not be insisted from all the family members if one of the adult members of the family has in possession of one of the prescribed identification document  at SL. NO.(i) ,(ii),(iii) and (iv). However, the other family members must have some proof of their identity with photograph and their relationship as a family viz. CGHS card, Ration card, Driving license, ID card issued by school/college etc.

15. The first applicant argued against the family being able to safely relocate to Nepal, (even if they could find documents enabling them to enter the country, which he doubted.)  He submitted that the border between India and Nepal is so porous that the people who would want to harm him, or people they hire to do so, could easily enter the country, kill him and then escape.  The first applicant asked the Tribunal to accept that Nepal is as close to (and in some cases closer to) Punjab as many other parts of India.  When he uses his profile to agitate against what he sees as oppressive conduct on the part of the Indian government, or to elevate Sikh issues from Nepal, the first applicant believes that there is a real chance that he will be targeted by his enemies in Punjab, the wider Hindu nationalist extremist community and or the Government of India or persons acting on their behalf, even in Nepal. Further, the first applicant claimed that Hindutva is active there.  He believes that he will be at risk of persecution from Hindu  and anti-Sikh extremists in Nepal if he and his family live there.  He also argued that his son would find it difficult to adjust as he speaks no Punjabi or Nepalese. 

    Do the applicants have a right to enter and reside in Nepal?

16. Ostensibly, the Treaty of Peace and Friendship does create an entitlement for the applicants to enter and reside in Nepal.  Despite what the first applicant claimed, general country information suggests that Indian citizens are able to enter freely, to work, buy property and live in Nepal without significant restriction.  However as is evidenced from the entry requirements listed above, this is not an unlimited right to enter Nepal, and as indicated by the official website, some proof of Indian citizenship is required.  If the applicants were entering Nepal via a land border, birth certificates and other proof of Indian citizenship might be sufficient to enable them to enter India.  In this case, the applicants would be entering Nepal via air, because they would be unable to safely transit through India due to the risk of persecution faced by the first applicant.  The Tribunal accepts that none of the applicants have passports and that they are not in a position to obtain renewed Indian passports due to them being unable to declare that they have not sought asylum in any country.  Further, the Tribunal accepts that the applicants have no acceptable Indian identification which would suffice to enable them to satisfy Nepal’s entry requirements.  Hence, whilst the applicants may have a theoretical entitlement to take advantage of the Treaty provisions, the Tribunal finds that they have no current practical capacity, right or entitlement to enter and reside in Nepal, and there are no possible steps they could take to avail themselves of any theoretical right to enter and reside in Nepal. 

17. In those circumstances, the Tribunal finds that the applicants do not have a presently existing or enforceable right to enter and reside in Nepal, whether temporarily or permanently. The applicants are not excluded from protection by the operation of s.36(3). Given this finding, the Tribunal does not consider that it is appropriate to proceed to determine whether the applicants have a well-founded fear of persecution in Nepal.

    DECISION

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

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

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

    Anne Grant
    Member