1926361 (Refugee)
[2021] AATA 5646
•15 March 2021
1926361 (Refugee) [2021] AATA 5646 (15 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1926361
COUNTRY OF REFERENCE: India
MEMBER:James Silva
DATE:15 March 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 15 March 2021 at 5:20pm
CATCHWORDS
REFUGEE – protection visa – India – Federal Circuit Court remittal – religion – Insan religion – Dera Sacha Sauda (DSS) – tensions between DSS followers and Sikhs – political opinion – Indian National Congress (INC, Congress) – 2007 Punjab Legislative Assembly elections – credibility concerns – education level – vague and inconsistent evidence – delay in seeking protection – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2CASES
Randhawa v MILGEA (1994) 52 FCR 437Any 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 dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
The applicant is a [age] year old man from India.
The applicant arrived in Australia [in] August 2009 as the holder of a student visa. He applied for a protection (class XA) visa on 6 August 2014. On 27 February 2015, a delegate of the Minister for Home Affairs decided to refuse to grant the visa under s.65 of the Migration Act 1958 (the Act).
This is an application for review of that decision.
On 26 September 2016, the Tribunal (differently constituted, ‘the first Tribunal’) affirmed the decision not to grant the application a protection visa. The applicant sought judicial review of the Tribunal’s decision. [In] September 2019, the Federal Circuit Court issued an order by consent, requiring the Tribunal to reconsider and re-determine the application for review according to law. It did so on the basis that the first Tribunal had failed to comply with s.425, by misleading the applicant to mistakenly believed that it had been provided with certain supporting documents. The matter is now before the Tribunal pursuant to the order of the Court.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Criteria for a protection visa
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. A summary of the relevant law is set out in Attachment A.
CONSIDERATION OF Claims and evidence, and FInDINGS
Background
The applicant is a [age] year old man whose languages are Punjabi, Hindi and English. On the application form, he claimed to adhere to the ‘Insan religion’, a reference to the Indian social and spiritual group Dera Sacha Sauda (DSS).
The applicant was born in the village of [Village 1], in Padampur tehsil (township), Sri Ganganagar district, Rajasthan. He told the Tribunal that [Village 1] is a village of some [number] to [number] people, mostly Sikh but with some families who are DSS adherents. It is about [distance] drive to the border with Punjab, and about the same distance to the Haryana border. The applicant wrote on the application form that he lived in [Village 1] until August 2009, when he came to Australia. At hearing, however, he claimed that following an assault in January 2007, he moved to other Indian cities (Delhi, Ahmedabad and Mumbai), and later stayed with an uncle in Padampur.
The applicant attended [named] Secondary School in Padampur. He did not provide any information about any qualifications or past employment in India. At hearing, he said that he attended secondary school from 2000 to 2008, completing the equivalent of Year 11. The school is located in an uncle’s village in Padampur, some 15km from [Village 1].
The applicant holds an Indian passport issued [in] 2009, which expired [in] 2019. He told the Tribunal that he has not applied for a replacement passport. He explained that he relies on the passport for ID (for instance, when getting his driver license renewed), and feared that Indian consular officials might confiscate it if they realised that he did not have a substantive visa in Australia.
As noted above, he entered Australia on a student visa [in] August 2009, at the age of [age].
Claims
The applicant claims to be adherent of the Dera Sacha Sauda (DSS), who promoted the movement and, in keeping with his leader’s instructions, campaigned for the Indian National Congress during the 2007 Punjab State elections. He claims that in January 2007, Sikh activists attacked him (and others) while they were campaigning near the Punjab/Rajasthan border. After receiving treatment, he fled to Delhi, but his opponents also found him and attacked him there, too. Further stays in Ahmedabad and Mumbai also did not offer refuge. After some six weeks, he returned to his district to continue his studies. Sikh activists continue to come looking for him, threatening to kill him if they find him, and intimidating his family. The applicant claims that the police are close to the Sikhs and will deny him protection. He claims to be at risk of persecution or significant harm throughout India.
Evidence
The Tribunal has before it a range of material, including, relevantly:
§ The protection visa application form lodged on 6 August 2014; his protection claims are set out in a two page statement, and in brief comments typed on the application form.
§ ID and related documents:
- Partial photocopy of the applicant’s Indian passport, issued in Jaipur [in] 2009, and valid for ten years.
- Selected academic records from India; a copy of the applicant’s Queensland driver’s licence.
§ Documents to support his protection claims:
- A photocopy of a prescription note, in English but poorly legible, from a doctor at the government hospital in Sri Ganganagar, dated [in] January 2007. It refers to a patient aged [age] who presented with blunt injuries to the chest but refused to be admitted to hospital. Some Hindi text appears on the note; it appears to correspond to the applicant’s name as written in Hindi, which appears on Form 866C of the protection visa application.
- Affidavit (incomplete, in Hindi) with translation of full text from [Mr A], dated 11 February 2015.
- Affidavit from [Mr B], dated 11 February 2015.
- Affidavit from [Mr C], undated but notarised on 26 February 2015.
- Affidavit from [Ms D], attested on 27 February 2015.
And recently:
- Affidavit from the applicant’s father, [Mr E], dated 18 February 2021.
- Affidavit from [Mr F], son of[Mr G], dated 18 February 2021.
§ The Department file includes a bridging visa application, bank account statement and statutory declarations, essentially relating to the applicant’s request for permission to work. The contents are not relevant to this application. It also includes some documents that the applicant appears to have submitted in support of his student visa application.
§ The protection visa interview (‘Department interview’) held on 15 February 2015, a recording of which is on the Department file.
§ The protection visa decision record (‘delegate’s decision) dated 27 February 2015.
§ The review application received on 28 March 2015.
The applicant appeared before the first Tribunal on 20 July 2016, to give evidence and present arguments. His uncle, [Mr H], gave evidence as a witness. The hearing took place via video link and was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicant appeared before the current Tribunal on 7 December 2020. The hearing was again conducted via video link, with the assistance of an interpreter in the Punjabi and English languages. The applicant did not present any additional documents or witnesses. He commented briefly that previous decision-makers had not accepted his claims, implying that for this reason he had opted not to ask his uncle to give evidence again.
The applicant queried what further evidence he might try to obtain. Thinking aloud, he said that he might be able to ask schoolteachers or others to provide affidavits; or Australian officials might be able to make local enquiries about his claims. He added that, due to COVID-19 restrictions in India, it might take some time to obtain more documents. At the end of the hearing, he confirmed that he had presented his claims and evidence; and did not repeat the suggestion that he might wish to make more submissions. The Tribunal noted that the applicant had had ample opportunity to provide evidence and advised that it did not propose to ask Australian officials to undertake research specific to his case.
Ministerial Direction No. 84 requires the Tribunal to take into account any country information assessment 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. At hearing, the Tribunal drew on general country information, as the most recent DFAT Country Information Report – India of 17 October 2018 did not include mention of Dera Sacha Sauda.
On 10 December 2020, DFAT issued a new Country Information Report – India, which included a section on DSS[1]. In this report, DFAT included comments about DSS’ declining influence (due in large part to the imprisonment of its leader Ram Rahim) and the lack of information about ‘major incidents of violence targeted specifically towards targets of [DSS] in India’. The Tribunal formed the preliminary view that this information was consistent with the information discussed at hearing, and not directly relevant to this decision, given the applicant’s claims about the nature of his (and his family’s) links with the DSS, in his local area. It nonetheless wrote to the applicant on 15 December 2020 to bring the section to his attention and provide him with an opportunity to make any submissions.
[1] Paragraphs 3.76-3.79.
On 31 December 2020, the Tribunal received advice that the applicant had appointed a representative. The representative wrote to the Tribunal on 12 February 2021 advising that the applicant was arranging more evidence, and needed more time, as the ongoing farmers’ protests in northern India had made it more difficult for the applicant’s friend to collect material. On 2 March 2021, the Tribunal received a submission with two affidavits in Hindi, and two press articles on violence involving the DSS. On 8 March 2021, the Tribunal received English translations of the affidavits. (The Tribunal has listed the affidavits above, for ease of reference, and addresses the press articles in the body of this decision.)
The Tribunal has carefully examined the post-hearing submissions, which consist of the two affidavits and country information, without comment (except for a translator’s note clarifying a few country-specific terms). In its view, these provide further evidence relating to the matters discussed at hearing, and do not give rise to new issues.
Country of reference / receiving country
The applicant claims to be a national of India. He has presented a copy of his Indian passport, and his other documentary and oral evidence supports this claim. On the available evidence, and in the absence of any contrary information, the Tribunal finds that he is a national of India. This is therefore the country of reference for the purpose of assessing his refugee claims, and the receiving country when assessing his eligibility for complementary protection.
Assessment of claims: credibility
The Tribunal has taken into account the AAT’s Migration and Refugee Division Guidelines on the Assessment of Credibility (Credibility Guidelines) both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole. In considering the applicant’s overall credibility, the Tribunal has reflected on the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for… [but this should not lead to]… an uncritical acceptance of any and all allegations made by supplicants’.
In the present case, the applicant left India at the age of [age]. The key events in his protection claims allegedly occurred when he was in his mid-teens. He first presented protection claims almost five years after arriving in Australia, and a further six years have now passed. The Tribunal is mindful of all of these factors. The Credibility Guidelines highlight the need for caution in assessing the credibility of claims presented over a long period of time, in successive interviews and settings. When addressing his confused account of an alleged attack in January 2007, he also invited the Tribunal to take into account that he is not ‘educated’. The Tribunal notes, however, that he attended a senior secondary school in India. It is not satisfied that there are any factors such as a lack of formal education, or in the applicant’s ability to recall and articulate information, that are relevant to this assessment.
Overall, the Tribunal found the applicant’s claims and evidence to be vague, sometimes changeable or inconsistent, and often lacking context. It has significant concerns about aspects of his claims, such as the notion that local Sikhs viewed him as a political opponent (or future rival) while he was still 15 years of age or younger; his inconsistent evidence about the nature of an alleged attack in January 2007; and his claim to be afraid of practising DSS even in Australia, for fear that Sikh friends would reject him. Taken as a whole, the Tribunal considers that the applicant’s claims and evidence have significant credibility gaps. Its full assessment is below.
Dera Sacha Sauda (DSS)
In India
The applicant claims that his family are longstanding members of DSS. According to the Department of Foreign Affairs and Trade, this is ‘a social welfare and spiritual organisation that has a history of conflict with the Sikh community. General country information indicates that the DSS was founded in 1948 by a pious Sikh leader from Baluchistan. It is headquartered in Haryana. It cites its key principles as: secularism; equality; anti-materialism; truth and faith; strict individual discipline; strict social discipline; and hard work.’[2] The post-hearing submission includes a translator’s note which describes DSS, in similar terms, as ‘a socio-spiritual organisation that preaches and practices humanitarian and selfless services’.
[2] Department of Foreign Affairs and Trade (DFAT), ‘DFAT Country Information Report – India’, 15 July 2015, p.16. Note, the most recent DFAT Country Information Report for India does not include reference to the DSS. The Tribunal is satisfied that the summary in the 2015 remains current.
The Tribunal notes that some sources regard DSS as a breakaway or reformist Sikh group, which in turn has led members of the Sikh community to criticise it for having ‘diluted’ Sikhism.[3] Others note that it reflects several religious traditions, and that its ‘followers are drawn mainly from low caste Hindus’.[4]
[3] Alig, Asif Anwar & Anwar, Abid 2007, Embers of a Sikh fire. Himal South Asian, October[4] Singh, Jyotsna 2007, What is behind Sikh protests?, BBC News, 18 May
According to the DSS website, more than 50 million people worldwide are ‘faithful observers’[5], The Tribunal accepts that it has a sizeable following, particularly in northern India, although it is not confident as to the exact numbers.
[5] Dere Sacha Sauda website:
The applicant wrote that his grandfather joined the dera (camp, or community) many years earlier, and promoted its teachings in the areas around the family village. The dera later appointed him (the grandfather) as a local leader; the applicant referred to the five-member committee. The applicant’s father participates in these activities, and his mother and sister are also followers.
At hearing, the applicant said that the nearest DSS shrine to his village is in Shri Gurusar Modia which, according to Google Maps, is some 38-54km from Padampur. He said that, growing up, he used to attend satsangs (DSS gatherings) with his family once a week. These took place in various local villages. After prayers, there would be discussions about wrongdoing, improving society and similar topics, and activities like planting trees. For children, there was a focus on training and self-improvement.
The applicant said that his family continues to practice DSS. His father’s role is now limited. He continues to attend the shrine in Shri Gurusar Modia, perhaps once a month; and he occasionally goes to Sirsa (a city in Haryana some 138km from Padampur, where DSS was founded in April 1948).[6] He confirmed that his father and other family members do not face obstacles in their practice. (He contrasted this with his own profile, which involved political campaigning and actual conflict with Sikh youth activists.)
[6] See:
During the course of the hearing, the applicant referred with some familiarity to DSS terminology and some key figures, although it was difficult to draw him on detail. He has not presented any photographs, correspondence or other contemporaneous evidence to show his or his family’s DSS involvement, or his claimed work as a youth leader.
Up to the time of the most recent hearing, the applicant had presented statements from four local residents. He described [Ms D] as the village head (although she referred to herself as ‘the wife of [Shri I]’, suggesting she may be the wife of the village head), and the others as residents. They each describe the applicant and his family as DSS followers. The statements are from neighbours (and hence, presumed well-wishers) and written in very similar terms. The two statements received post-hearing – one from the applicant’s father, and another from a local resident – contain similar content. The Tribunal places little weight on these as independent corroboration for the applicant’s claims.
The applicant’s uncle [Mr H], a distant relative, gave evidence at the first Tribunal hearing, also confirming that the applicant is a member of DSS. [Mr H] did not appear before the current Tribunal. The applicant indicated his disappointment that the first Tribunal had not accepted [Mr H]’s evidence, and implied that he thought it futile to present [Mr H] as a witness again. He said that [Mr H] is still aware of his need for protection. In this assessment, the Tribunal notes [Mr H]’s willingness to assist the applicant and to appear at hearing before the first Tribunal. However, it places minimal weight on these factors in support of the applicant’s claims.
Taking into account the applicant’s consistent evidence about his and his family’s affiliation to DSS, his familiarity and easy references to the practice, country information about its spread through northern India, the Tribunal accepts that the applicant had some involvement with the DSS in India; however, it is concerned that he has exaggerated the nature of this.
In Australia
The applicant arrived in Australia in 2009, more than eleven years ago. At hearing, he said he continues to identify as a DSS adherent and performs simran (meditation or prayer) twice daily, for some 20 minutes to an hour. He said that he obtains the materials via Youtube, and his parents sometimes send him a video. Asked whether he subscribes to any particular Youtube channel, the applicant replied vaguely that there is a DSS channel, but he did not appear to know its name. The Tribunal has found on the DSS website[7] itself links to ‘Live Satsang’, i.e. online practice sessions, indicating that such materials do form part of DSS practice for at least some adherents.
[7] See:
The applicant gave the following additional information about his current personal practice:
§ He said that he is aware of some DSS members in Brisbane, but none in the [City 1] area, where he lives. He has not visited the Brisbane site for more than a year. The Tribunal observed that he is free to move around in Australia and to engage in any religious (or similar) practices, and that his lack of engagement with DSS, in person or through other contact, might raise questions about the depth of his interest in it (both current and past). The applicant acknowledged that he has religious freedom here but said that he does not want his Indian friends here to know of his DSS links. He explained that most of his friends are Sikh. He knows that they disapprove of DSS, and he fears they will taunt and reject him if they learn about his affiliation (or his political work in India).
§ The applicant said in response to questions that he stays in contact with some DSS people in India, namely his parents and some people in the village. However, he does not maintain other DSS contacts.
Overall, the Tribunal found the applicant’s description of his current DSS practice – his personal practice, his contacts with DSS adherents and his disclosure to others – to be scant.
In explaining his reluctance to disclose his DSS links to his friends in Australia, the applicant relied in part on the history of conflict between the Sikh community and DSS adherents. This history also forms background to his claims about Sikh youth activists having pursued him in India.
§ As noted by the delegate and the first Tribunal, and discussed at hearing, in 2007 and 2008, there were violent clashes between Sikhs and DSS followers in parts of Punjab, Haryana and Delhi.
§ Since that time, there have been tensions and sporadic clashes, usually triggered by particular incidents and mostly confined to Punjab, Haryana and Delhi.
- For instance, in August 2017, the conviction of DSS leader Gurmeet Ram Rahim Singh (‘Ram Rahim’) on two counts of rape in Haryana resulted in violent protests in parts of India and reports of widespread vandalism. At least 38 people were killed and more than 200 injured after hundreds of his followers went on a rampage following his conviction.[8]
- The applicant referred at hearing to his mother having recently informed him during a WhatsApp video call about the recent murder of a 55 year old man in Bhagta Bhaika, Punjab (some 200km, North-East of Padampur). This was an apparent reference to the murder of a prominent DSS member Manohar Lal in November 2020, resulting in DSS protests and a road blockade, and rising tensions with the Sikh community. The trigger appears to have been allegations of DSS sacrilege in relation to the Sikh faith.[9]
§ The applicant claimed at hearing that DSS is now banned in Punjab, but when asked if had independent country information to substantiate that claim, went on to state that in some villages in Punjab, DSS followers cannot attend their places of worship (dera). In response to the Tribunal’s observation that he had earlier stated his family continues to follow DSS without hindrance and that he lives in the state of Rajasthan, not Punjab, the applicant said that the situation in Punjab affects his family because of their Punjabi background.
§ Following the hearing, the applicant provided two articles about violence against DSS adherents.
- One concerned the murder in June 2019 of a DSS follower, Mohinder Pal Singh Bittu, in a high security jail in Nabha, Punjab (this is some 300km to East of Padampur). He had been arrested in the wake of the 2015 Bargari ‘sacrilege incident’, when Sikhs had alleged that DSS followers had defiled their faith. The article notes that security in the jail had been lax, and that two Sikhs had been arrested on murder charges.[10]
- He also provided an article concerning the murder of Manohar Lal Arora in November 2020, which he had mentioned at hearing. The article refers to the arrest of two Sikh men, one of whom had boaster of the killing on social media.[11]
[8] Reuters, 28 August 2017, Indian court jails self-styled “godman” for 20 years, security: CXC90406612960
[9] The Tribune, 22 November 2020: Tensions escalate as 1,500 followers reach Dera Salabatpura after leader’s murder:
[10] India Today, June 4, 2019: Murder of Dera follower Mohinder Pal raises questions over security in Nabha jail:
[11] Vishal Joshi, Chandigarh News, November 21, 2020: Punjab gangster claims responsibility for killing dera following, premis protest:
The Tribunal accepts that, since 2007, tensions between DSS followers and Sikhs have resulted in some attacks, violence and protests between the two communities, sometimes triggered by allegations of ‘sacrilege’, perceived slights and/or criminal motives. These have been infrequent, sporadic and localised. The applicant’s statements that his own family continues to practise DSS, without hindrance, and the lack of specific information relating to Sri Ganganagar or Padampur, lead the Tribunal to conclude that such communal tensions have not had direct effects on DSS followers in his part of Rajasthan. The Tribunal is also not satisfied that the family’s Punjabi background, or any kinship with people in those areas where DSS has been involved in clashes, have any real impact on the applicant’s or his family’s ability to practice DSS.
In sum, the Tribunal accepts that many in the Sikh community have negative attitudes towards DSS, in part due to its divergence from mainstream Sikh teachings, its occasional political outspokenness, controversies surrounding Ram Rahim (such as his criminal conviction) and perceptions of it as a cult. It also accepts that DSS adherents may feel some stigma, as a result. However, it does not accept on the available evidence that any such attitudes impair his family’s ability to follow the practice in Padampur.
The Tribunal accepts as plausible, though far from certain, that the applicant was associated with the DSS in India. However, it does not accept, on the available evidence, that he has any ongoing interest in or commitment to the practice in Australia. In particular, the Tribunal does not accept that any fear of rejection by Sikh friends, or any other stigma, adequately explains his lack of demonstrated interest in DSS, in India or Australia.
Political activities
The applicant claimed that he became a leader of the DSS’ local youth wing. At hearing, he explained that the local satsang used to hold a speech competition for young DSS members. At the age of 13 or 14, he won the competition, and was given the opportunity to become a youth leader, and to travel around giving speeches to students at schools and even universities. He addressed students in general, not DSS adherents. The Tribunal asked how he arranged this with his school. He said that he attended a regular school (i.e. not a DSS facility). They let him have time off to give presentations. He was not sure why they agreed to this, but he suggested they regarded it like sports or other extracurricular activities. He did not have any photographs, invitations or correspondence in relation to these presentations, but suggested that his family or school might be able to provide them if asked. He has not submitted any further material relating to this.
The applicant said that this work took on a more political character in early 2007, when he started promoting candidates of the Indian National Congress (INC, Congress) for the Punjab Legislative Assembly election. He said that he used to discuss political issues (like Congress’s platform) with students, in the hope they would encourage their parents to vote for Congress. In response to the Tribunal’s surprise that schools would allow the applicant to promote the DSS or Congress to students, he replied that the schools regarded this a good thing (by implication, that he was spreading a wholesome message to the students). He went on to explain that he did not address overtly religious or political topics in front of teachers; rather, he used to discuss these things with students, when they gathered around him.
The Tribunal found the applicant’s description of his role as a de facto young spokesperson for the DSS, and giving presentations at schools and universities, while promoting Congress, to be unconvincing. He provided no persuasive evidence to show that DSS has a dedicated youth wing, let alone that it arranges for regular school students to tour local schools to promote its agenda. It remains unclear how the applicant managed to undertake these activities, given that he was about 14 years old and had study commitments. Finally, it also became apparent at hearing that he had not thought through the practicalities of how a school student could exert religious or political influence (including during elections in a neighbouring state). The Tribunal does not accept that he was speaking from personal experience, and finds that there is no truth to this claim.
The applicant said that the other aspect of his political work was accompanying his grandfather, who was on the five-member committee, to political gatherings. The Tribunal assesses this below, in the context of the 2007 Punjab elections.
Campaigning in the 2007 Punjab elections
The applicant claimed that, as well as generally promoting the DSS, during the 2007 Punjab Legislative Assembly elections, he followed the call of his leader, Ram Rahim, and campaigned in favour of the Congress. As noted above, the applicant said that he also accompanied his grandfather, who was on the five-member committee, to political meetings.
Country information confirms that in early 2007 the DSS ‘issued a public appeal for people to vote for the Congress party, [while] most Sikhs in Punjab support the rival Akali Dal party’. Commentators note that, while religious sects had previously recommended their followers to vote for a particular party, ‘this [was] the first time that a public appeal had been made to favour a political party. Sikh leaders, angry at the direct intervention by the DSS in the elections, seized the opportunity to whip up popular sentiments of their community against the DSS.’[12]
[12] Singh, Jyotsna 2007, What is behind Sikh protests?, BBC News, 18 May >
The Tribunal noted that the applicant was 14 years old at the time and wondered how he would establish a profile that would make him a person of adverse interest to Sikhs or others, on grounds related to any DSS and/or political links. In reply, he said that he encouraged students to tell their parents about the DSS, and to promote Congress. He added that the Sikh community might also regard him as a person who was influencing or corrupting their young people. The Tribunal also noted that his grandfather, who the applicant claims had been active in DSS and its political work, continues to live in the local area. The applicant replied that his grandfather is now old, implying that political opponents were less likely to target him. He suggested that, by contrast, his youth and potential political future make him a person of greater political interest to opponents.
The Tribunal also noted that the applicant lives in Rajasthan, by his own evidence an hour or so by car from the Punjab border. The applicant explained that Punjab politics resonate with the Punjabi residents of Rajasthan, and the tensions also spilled over the border.
The Tribunal found the applicant’s description of his political activities – directly, or through his association with his grandfather – to be vague, uncertain and unsupported by corroborative evidence. It does not accept that the applicant had any political role, actual or perceived, during the 2007 Punjab elections, or at any time.
Harm experienced in India
The applicant claims that his campaign work – that is, promoting the DSS as well as Congress in early 2007 – was successful. Sikh youth organisations, particularly the All Indian Sikh Students Federation (AISSF), then started to target him. His statement of claims briefly mentions that Sikh youth attacked and injured him, and that he required hospitalisation. Again, the context for this appears to have been the Punjab state election campaign in February 2007.
Attack in January 2007
The applicant claimed that one day in mid-January he had been campaigning with his grandfather in a village whose name he could not remember, just near the Punjab/Rajasthan border. He was sitting with his grandfather and others on a stage, during a campaign rally. A group of people attacked them from behind. Asked whether he was the specific target of the attack (as implied in his written statement) or simply caught up in a larger incident, the applicant said that he believed the attackers were after him personally. He reasoned that, because his grandfather was on the five-member committee, his attackers would have known that the applicant was following in his footsteps.
The applicant said that, as the assailants came at them, his grandfather and others rushed forward, in a bid to escape. In the chaos, the applicant did not manage to see the attackers or their weapons, but he believes they had baseball or hockey sticks.
The applicant told the Tribunal that he fell forward and suffered a dislocated shoulder. He first travelled to Sri Ganganagar, for immediate medical attention. They took an x-ray of his arm, bandaged it (implicitly, put it in a sling) and sent him on his way. The applicant then returned to Padampur. He said that he needed further treatment for his shoulder, by way of regular messages.
The Tribunal discussed the medical note from the government hospital in Sri Ganganagar, dated [in] January 2007. In poorly legible English, this appears to indicate that the applicant presented at the hospital with ‘injuries c blunt injuries chest, advise xray chest, advise admit […] hospital but refused’. It then lists some medications, including [Medication 1] (an antiseptic for skin disinfection), [Medication 2] (an antibiotic medicine) and others that are not legible.
§ The Tribunal observed that the note mentioned a blunt chest injury, presumably inflicted from the front or as he fell onto something. In reply, the applicant said that he had scratches all over his body. He said he does not know what the doctor wrote, but he (the applicant) is not to blame for any errors in the note.
§ In response to further questions, the applicant said that he was admitted to hospital for one or two days. He said that he was unable to stay in hospital in Padampur, for fear of the Sikh activists attacking him there. The Tribunal tried to clarify which hospital he had stayed in, as the medical note from Sri Ganganagar had referred to him refusing to be admitted there, and the applicant had said he felt it was unsafe for him to stay in Padampur. The applicant explained that these events happened many years ago, and he has limited education. He said that he might be able to secure another report from the hospital in Sri Ganganagar to clarify the matters.
§ Asked whether his grandfather suffered any injuries during the attack, the applicant replied briefly that he does not know.
The Tribunal has significant concerns about this claim. First, for the reasons stated above, it does not accept that the applicant, a 14 year old student at the time, played any role promoting DSS or campaigning for Congress during the state elections in Punjab, particularly given that the border was an hour’s drive from his house, and that, even taking his informal discussions with students or appearances with his grandfather at face value (which the Tribunal does not), he had minimal public profile. It also does not accept that he was perceived to be upcoming political star. Second, the applicant’s inability to recall basic information about the alleged attack – such as where it occurred, and whether or not his grandfather (who was with him) suffered injuries – casts doubt on the truth of the claim. In the Tribunal’s view, the applicant’s age, the passage of time and the circumstances surrounding these incidents do not adequately explain his uncertainty. Third, the applicant’s limited and confused information about what happened on stage is not, in the Tribunal’s view, attributable to the melee that allegedly occurred. Rather, it suggests that he was in fact not there at any such incident. Fourth, the Tribunal is concerned that the medical note does not match the applicant’s basic claim that his main injury was a dislocated or fractured shoulder, and that he was in fact admitted to hospital somewhere. The Tribunal does not accept that there is some equivalency between; (a) an injured shoulder and his refusal to be admitted to hospital, as stated in the note; and (b) a blunt force injury to his chest, and being admitted to some other hospital (or perhaps the same one, later on).
The Tribunal considers subsequent events and the applicant’s conduct, and makes findings, in the paragraphs below.
Lack of police protection
The applicant claimed that he reported this attack to the police, but they did not register a complaint and they offered him no assistance. He attributed this to political pressure from the ruling Sikh party. At hearing, commented briefly that the police refused to file a complaint.
The Tribunal asked the applicant if he had sought help from any other quarters, including the local Congress member of parliament Gurmeet Singh Konner. The applicant replied that his father approached Gurmeet Singh Konner to see if he could offer any support or security. Konner replied that he could not. The applicant observed that Konner has political ambitions for his own son; by implication, he would likely not want to assist a potential rival to his son. Overall, the Tribunal found the applicant’s references to protection to be brief and uninterested.
Attacks and threats in other places
The applicant wrote that he left his local area following the attack in January 2007 to stay with relatives and friends, first in Delhi and later in Ahmedabad. During this period, his Sikh opponents continued to come looking for him in the village, threatening to kill him. In Delhi, someone tipped off the AISSF about his whereabouts. Sikh activists found him there and assaulted him, but he managed to escape.
At hearing, the applicant said that he first went to Delhi for perhaps four to six weeks, but AISSF activists located him and assaulted him there. He said that the people he was staying with told the Sikh activists where he was. About five to seven men came to the place he was staying. They slapped him and asked him to come with them. The applicant was quick on his feet and managed to escape before they could catch him. He then went to Ahmedabad for two to three days, and later to Mumbai for a week or two. The applicant intimated that he had not been able to survive in these other places (e.g. financially).
After some time – less than two months, it appears - the applicant returned to live with his uncle in Padampur, some 15km from his own home, and to resume his studies in the same school. He said he was in ‘hiding’ during this period, and it was difficult living like that. The Tribunal put to him that his return to his uncle’s place, and to his regular school, did not suggest he was in hiding. This in turn raised questions about the alleged attacks in his home area and in New Delhi, and undermined his claim to fear persecution or significant harm throughout India. The applicant replied that the school had security to prevent intruders. He used to travel to and from home in a car with blacked-out windows, and the home was in a secluded spot surrounded by farmland (rather than other dwellings).
Taking into account its concerns about the circumstances that led to the attack, the applicant’s uncertain account of what happened on the day, and his subsequent conduct – in particular, his continued school attendance and residence at his uncle’s home – the Tribunal does not accept that Sikh activists attacked the applicant [in] January 2007, either targeting him personally or as part of a broader assault. The Tribunal also does not accept that the applicant’s father or anyone went to the police to report such an incident, or that the police declined to assist. It also does not accept that the applicant went to Delhi, and was attacked by Sikhs there; or that he sought refuge in Ahmedabad, Mumbai or anywhere else, only to find that there were practical or safety reasons for him being unable to stay there. The Tribunal finds that the applicant was not in ‘hiding’ at his uncle’s place; he did not have to rely on school security in order to continue his studies; and he was not living in fear and having to take any precautions that made life difficult. The Tribunal does not accept any associated claims.
Departure from India and subsequent events
The applicant wrote that, in the wake of the attacks on him and threats towards his family, his father arranged for him to travel to Australia on a student visa. His father’s affidavit and other statements also refer to this.
The applicant claimed that Sikh activists continue to come to the village (where the family home is) to enquire after him. They threaten to kill the applicant if they find him, leaving his family in fear. His parents also receive menacing telephone calls, asking after the applicant and threatening to harm him if he returns.
The applicant said that in 2012, he received a threatening telephone call in Australia. The caller warned that they do not want to ‘spare’ the applicant. He told his parents about the call, asking them if they knew who might have his mobile telephone number in Australia. He did not report the threatening call to anyone else.
Given the Tribunal’s findings above, and its adverse view of the applicant’s credibility, it does not accept that he left India for any reasons linked with his protection claims, and it does not accept that Sikh opponents have continued to threaten or intimidate him, or his family, in India or in Australia.
Delay in seeking protection
The applicant departed India in August 2009[13], but did not seek protection until August 2014. As noted in the Credibility Guidelines, the period of time between an applicant’s arrival in Australia and when they claim protection can be relevant in considering the genuineness or extent of their claimed fear of persecution of significant harm, and hence their need for protection.
[13] As stated on the protection visa application form.
In the present case, the delay of some five years is significant. As noted on the protection visa application, his original student visa was originally valid until April 2012. The applicant explained that he had originally wanted to return to India, and his family thought he could do so safely after three or four years abroad. However, his Sikh opponents continue to ask after him. His mother reluctantly advised him to remain in Australia, to save his life.
The Tribunal is not satisfied that this explanation adequately explains the delay. As noted at hearing, the applicant held a student visa and has relatives in Australia (at least distant relatives), suggesting that he could have made enquiries or sought advice if he had needed to. He has presented no evidence of plans to return to India. He has also not explained why, if his original visa was valid till April 2012 and if he (and his family) were subject to periodic threats, he waited until August 2014 before lodging the protection visa application. Finally, the Tribunal’s adverse credibility findings above lead it to disbelieve that he had originally planned to return to India, and that he only changed his mind after hearing from his family that there were continued threats. In sum, the applicant’s significant delay in seeking protection reinforces the Tribunal’s findings that he does not have an adverse religious or political profile through his or his family’s association with DSS, and he does not fear persecution or significant harm in India, for any reason.
Family’s position as DSS members
As noted above, the applicant stated at hearing that his grandfather, father, mother and siblings are DSS adherents, and do not currently face any obstacles to practising DSS. His evidence suggested that they attend deras or satsangs only occasionally, due to factors such as his grandfather’s age, other priorities and/or the location of such gatherings.
In his statement of claims, the applicant wrote that his family is socially isolated, adding that they had to bring in farm labour from outside the village. The implication is that the family suffers discrimination from other villagers and/or farm labourers from outside, in a way that affects their livelihood. Asked about this at the recent hearing, the applicant replied that there is in fact no shortage of cheap labour. However, he went on to state that the availability of cheap labour also made his family fear that their opponents could easily hire someone to kill them.
The Tribunal does not accept that other villagers or farm labourers ostracise the family, for religious, political or similar reasons, and make it hard for them to hire workers and earn a living. As for the new suggestion that his family lives in fear of being killed by hitmen hired by his opponents, the Tribunal does not accept that the family has any religious, political or social profile, (through the DSS or any past promotion of Congress) that motivates opponents to harm them; or that they have any fears of such harm, including contract killings.
Summary of findings
The Tribunal accepts that the applicant and his family have had some affiliation with the DSS. In the applicant’s case, it finds that he participated in DSS social and spiritual practices, at a modest level. It does not accept that this involved any political or other outreach activities, including through school or in the company of his grandfather. The Tribunal finds that, since arriving in Australia, the applicant’s interest in DSS has waned, and he has no genuine commitment. In its view, this reflects his low level of engagement in India, rather than any concerns about rejection from Sikh friends in Australia. The Tribunal finds that the applicant’s family’s DSS practice is low key, due to their location and other priorities. The Tribunal accepts that there are few DSS adherents in the applicant’s village and immediate environs, but does not accept that they face ongoing threats or hostility.
The Tribunal does not accept that the applicant engaged in any political activities, and it rejects all the claims of past harm arising from these. It does not accept that the applicant was attacked in June 2007; that he suffered injuries as a result of the attack; that he required medical treatment but had to avoid hospitalisation as this might put him in danger; that the police declined to assist him; that the local Congress leader refused to assist, for personal reasons; that the applicant went into hiding in Delhi, Ahmedabad and Mumbai (although he may have visited these places for other, unrelated reasons); that Sikh activists also attacked him in Delhi; that the applicant lived ‘in hiding’ at his uncle’s place, in difficult circumstances; or that his father and others arranged for his travel for safety reasons. The Tribunal does not accept any associated claims.
The Tribunal does not accept that the applicant or his family have received any threats or warnings since his departure from India; or that he has any associated fears that prevent his return to India. The Tribunal also does not accept that the applicant planned to return to India but changed his mind because of ongoing or renewed warnings. Finally, the Tribunal does not accept that the applicant has exercised caution in Australia, for instance, by failing to tell friends about his DSS links, for fear of social rejection or other negative consequences.
ASSESSMENT – REFUGEE CRITERIA
The Tribunal now assesses whether the applicant has a well-founded fear of Convention-related persecution, now or in the reasonable foreseeable future, having regard to the analysis and findings above, the applicant’s future conduct if he returns to India, and relevant country information.
At hearing, the applicant intimated that if he returned to India, he would likely go back to Padampur and Sri Ganganagar, at least initially. He emphasised throughout that his opponents see him as a future leader and will target him. In response to the Tribunal’s observation that he left India at the age of [age], and does not appear to have cultivated any contacts or influence that might arouse the adverse interest of opponents (religious, political or otherwise), he replied briefly that ‘they’ (i.e. the Sikhs and his political opponents) do not think like that.
The Tribunal does not accept that the applicant’s past low level links with DSS in India, during his teens, makes him a person of adverse interest to Sikhs generally, or Sikh activists. It finds his current interest in DSS to be minimal, and is not satisfied that he will do more than accompany relatives if they do participate in any DSS activities. The Tribunal finds that there is no real chance of Sikhs, or Sikh activists, harming the applicant for any reason associated with his and his family’s DSS links. Having regard to the applicant’s scant engagement with DSS now, it does not accept that he will be motivated to participate in any higher profile activities, or that he would need to modify his conduct (such as refraining from certain practices) in order to avoid persecution.
The Tribunal also does not accept that the applicant has in the past engaged in political work for the Congress, either directly or through his grandfather; or that he has a political opinion that would motivate him to do so if he returns to India. It follows that the Tribunal does not accept that he has a political profile based on his past support for Congress; or that he will acquire one on his return to India. The Tribunal finds there is no real chance that Sikhs, Sikh activists or any Congress opponents would seriously harm the applicant for reason of any political opinion, actual or perceived, or because they view him as young rising political star.
The Tribunal does not accept that the applicant has sought police protection in the past, and that they have denied him it, for Convention-related reasons (such as his DSS links) or for any other reason. It finds there is no real chance of the applicant needing protection from Convention-related persecution, and the police or other State authorities denying him. Similarly, it finds there is no real chance of the Indian authorities withholding protection from other harm by non-State actors, on a selective and discriminatory basis relating to the Convention. In reaching these conclusions, the Tribunal has regard to the applicant’s scant links with the DSS, and the lack of reliable evidence to indicate any such systemic practices by the Indian authorities (even though the applicant and the articles he provided alluded to some instances of alleged neglect).
Country information indicates that India has bouts of political and communal tension, mostly sporadic and localised. The applicant’s representative alluded to recent large scale farmers’ protests in northern India, in the context of the applicant’s request for more time to collect evidence. The Tribunal does not detect in these comments any implied claim that these protests could put the applicant at risk of Convention-related persecution.
At hearing, the applicant said that he had not applied for a fresh Indian passport because he feared Indian consular officials might confiscate his now-expired one, leaving him without adequate documentation in Australia. The Tribunal accepts at face value that the applicant would prefer to keep his passport and does not want to be given a temporary travel document. It does not detect in this statement, or other evidence, that the applicant is concerned that Indian consular officials may treat him differently from other citizens, or that they have any adverse interest in him, for any reason.
The Tribunal has considered the applicant’s claims and evidence, individually and cumulatively. For the reasons set out above, the Tribunal does not accept that if the applicant returns to India now or in the foreseeable future that there is a real chance he will face serious harm amounting to persecution for reason of his association with DSS, any support for Congress, or any other reason, in his home area of Padampur or anywhere in India. The Tribunal does not accept that he has a well-founded fear of persecution for reasons of his religion, membership of a (putative) particular social group, political opinion (actual or imputed) or for any other Convention-related reason.
ASSESSMENT: COMPLEMENTARY PROTECTION
The Tribunal has considered whether on the evidence before it, that there would be a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to India. It takes into account all of the claims and evidence before it, including the applicant’s future conduct and relevant country information.
For the reasons set out above, the Tribunal is not satisfied that the applicant’s circumstances, such as his and his family’s limited involvement with the DSS, or any preference they may have for Congress, put him at risk of being targeted by Sikhs, Sikh activists or others (such as opponents of Congress). Some of the applicant’s concerns relate to India’s general social and security conditions, such as sporadic political, communal or social unrest. Under s.36(2B)(c) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm if the Tribunal is satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally. The Tribunal is satisfied that the applicant’s concerns about these broader issues are faced by the population generally and not by him personally.
For the above reasons, the Tribunal is not satisfied that the applicant’s circumstances give rise to a real risk that he will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on him, such as to meet the definition of torture; or that would meet the definition of cruel or inhuman treatment or punishment; or the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk that he will suffer arbitrary deprivation of his life or the death penalty.
Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that he will suffer significant harm: s.36(2)(aa).
Conclusion
For the reasons given above, the Tribunal is not satisfied that the first-named applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
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.
James Silva
MemberATTACHMENT - Relevant law
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, 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.
Refugee criterion
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).
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.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
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’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 499 Ministerial Direction
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment 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.
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Immigration
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