1927126 (Refugee) - [2025] ARTA 1439

1927126 (REFUGEE) [2025] ARTA 1439 (7 APRIL 2025)
DECISION AND
REASONS FOR DECISION
Representative: Mr Nandan Nilesh (MARN: 0104983)
Respondent:Minister for Immigration and Multicultural Affairs

Tribunal Number: 1927126
Tribunal:General Member M Simmons
Date:7 April 2025

Place:Sydney
Decision:The Tribunal affirms the decision under review.

Statement made on 07 April 2025 at 12:43pm
CATCHWORDS
REFUGEE – Protection Visa – India – race – Sikh –religion – Sikhism – political opinion – a supporter of Khalistan – membership of particular social group – a member of the Sikh community in Jammu and Kashmir – vague, unsatisfactory and unconvincing evidence – Khalistan movement – not satisfied the applicants have a well-founded fear – delay in applying for protection in Australia – credibility concerns – decision under review affirmed

LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958 (Cth), ss 5, 36, 65, 91,359, 499
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 11 September 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).The applicant who claims to be a national of India, applied for the visa on 23 January 2018.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
The applicant appeared before the Tribunal on 26 February 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
Evidence before the Department
Material before the delegate comprised:
·Protection visa application submitted 24 January 2018.
Evidence before the Tribunal
The information before the Tribunal includes:
·Submissions dated 27 May 2024, accompanied by:
§Statement of the applicant dated 27 May 2024.
§Statement of [name] dated 20 November 2021.
§Statement of [name] dated 20 November 2021.
§Statement of [name] dated 20 November 2021.
§A residency certificate from the Government of Jammu & Kashmir (date illegible).
§A copy of the applicant’s passport.
§The 2023 Australian Department of Foreign Affairs and Trade (DFAT) Country Information Report on India.
§A file entitled “Other documents in support of the Applicant’s claims” containing an indictment in the United States District Court, Southern District of New York; a letter entitled “Ministry of External Affairs, From: Foreign New Delhi, To: HCI Ottawa, DHC from Foreign Secretary Action Points on Khalistan Extremism, April 2023”, and a one page document with text commenting on “Targeting and Assassinating Sikhs in the West…” with an image of two men.
·A hearing response form dated 11 December 2024 in which the applicant states: My claims for seeking protection remain the same and there are no changes.
·Submissions dated 18 February 2025 containing four attachments, described as:
§Article – The Dangerous Path of Islamophobia in India.
§Letter from the [politicians] (Australia) (dated 16 October 2024).
§Data on the 1984 Sikh Genocide (covering 31 October – 4 November 1984).
§Case of Vikash Yadav and Nikhil Gupta (United States District Court) (which was also submitted on 27 May 2024).
·The hearing held on 26 February 2025.
·Photos and new passport produced during the hearing.
·Post-hearing submission dated 11 March 2025, enclosing extracts from Wikipedia.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of their claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Protection claims
The applicant had assistance from a migration agent in preparing his visa application. In that application he provided the following details in respect of his past experiences and future fears in India:
·I arrived in Australia on [date] November 2013 on a different name [ALIAS 1] . I came with a family of a Indian man from Calcutta ( West Bangal).
·The main reason for coming with a another family and another name was to save my life from the Pakistani Supported Militant Group Mujahideen group which wanted me to join their group and work for them. When I refused to work for them they tried to kill me . They had abducted and killed many young Sikh Youths from Nearby village of Sikh Community .
·When my family opposed or resisted these Mujahideen Militants tried to occupy our family's property in my village [Village 1] . In 2009 these Mujahideen group attacked on our house in which I was injured (33 Percent burnt my body) .
·In February 2012 , they again attempted and we left our house with the help of military .From that time, my parents are trying to send me and my brother to any other countries.
·The Sikh Community fled from the Country side and tries to settle in Srinagar. Since 1998 the Hindu and Sikh places of worship , temples and Gurudwaras alike have been looted , desecraeted, vandalized, destroyed or burned by these militants.( Flizbul Mujahideen) In some place, these and Gurudwaras are converted into mosques . The Mujahideen is making propoganda that the special Operation Groups of Kashmir carries out operation against them with high handedness. Indirectly they are supported by l.NC workers and on their directions , these Mujahideen target and loot or vandalize their property . In Jammu many young Sikhs have been abducted and killed.
·My father is a noted and popular Sikh Leader in Jammu who supports the present Government run by BJP.
·In June2012, I was targated by the Militants supported by INC Jammu Group.
·My parents organised passport and visa. I came to Australia. I did not know about making Protection Visa Application and because of that I did not lodge any application for protection visa at that time.
·The Mujahideen militants has determind to wipe out supporters of the present government. In Jammu and Kashmir , the Sikhs or Hindu group which is actively or indirectly help the police or military operation to eradicate Kashmiri militants , are targated by the Mujahideen militants .. My father approached to the highest Police Authority for the safety of our family . They said they cannot give any guarantee for the protection. They advised to be vigilant from the militants . The Government is urging all the Political Parties to help to stop the Terrorist activities of Pakistani supported militants, but there is not big difference from the situation of past and present. When we go to Authority for security they say it is very hard to give security to every body. They want cooperation to fight against Kashmiri miltants. We are not safe and secured there. The protection is not reliable in Jammu and Kashmir.
·Yes I experienced harm in 2009 when there was an attack on my family and family house. Nearly 33 percent of my body was burnt. I was almost killed by them but due to god mercy and medical treatment I could save my life. In June 2012 again there was attacks at my house in my Village. We survived because of Military Police came at right time tosave our life.
·Yes we informed the police and requested for the help. But we culd not get proper security. They only said that we should be vigilant and inform any activitity of militants in our area. Our life in Jammu is totally depended on the God . What time the militants will come it is totally unpredictable .Now, I understand how the my families are living in atmoshphere of fear from the militants . Hundreds of news have come about killing of our Sikh youths in Jammu. Most of the Sikh People of regional areas have left and come to Srinagar .. They have left because of the danger from the these Pakistani supported militants . They are living in a temporary shelter at the mercy of Gurudwra the Sikh Organisation.
·Yes I and my family moved from village to Jammu main town and my parents wanted to send other state but it was difficult. The person who is born in Jammu cannot settle in other parts easily. There is a limit on their movement and settlement . My parents tried best but could not get proper protection for us.
·Yes, I will be harmed if! go back to my country. They ( Kashmiri militants)can find me at any moment. They can kill me, mistreat me and harrass me. I have lost freedom of movement. They have agent at Airport and everywhere. When the INC political party is working with them who can escape from their knowledge.
·As I said that there is no guarantee that the authorities can protect me. They themselves do not feel protected . In that situation how I can expect that they can protect me.They ( Authority) are themselves urging all the political aparties to support against this Pakistani supported militants. In that situation I can beleive that I will get genuine protection
·As I said earlier my parents tried best to relocate in another parts of India but it is not feasible. The person who is a Kashmiri born has special condition. It is not easy to settle in another parts of India when there is no guarantee of life. Relocation is unreasonable.
The applicant provided new details in respect of his protection claims in his written evidence to the Tribunal. In his 27 May 2024 statement he raised the following:
·Sikh people are a religious minority in India and have a long history of being oppressed by the state and non-state groups. Jammu & Kashmir is close to Pakistani border and the border issues between India and Pakistan has been a root cause of conflict between the two countries. In addition to the armed conflict and other skirmishes in the region, the region has also seen clashes based on religion and religious affiliation of people.
·Many youths in Jammu and Kashmir have continuously been forced by extremist nationalist and religious group to join their sides to strengthen their cause. Many youths even today are forced to join these groups and are threatened with harm to them and their families, or abducted, if they refuse to do so.
·Around 2008 to 2009, the applicant along with his brother [Mr A] was approached by the cadres of Mujahideen group to join them. He resisted and as a result was attacked by Mujahideen group in 2009 in a wedding function in a nearby town where his body was burnt up to 33%. [Mr A] was severely injured and hospitalised.
·A similar attack occurred against the applicant’s family members in February 2012 and the group occupied the family property in village [Village 1]. The applicant was also targeted by militants supported by the INC Jammu group in June 2012.
·The government’s policy of Islamization of Jammu and Kashmir has not only seen killing and displacements of Sikh and other religious minorities from the region but has also subjected them to severe atrocities and discrimination over the years. Many Sikh people still suffer from deadly attacks including targeted killings, destruction, looting and vandalization of their places of worship and different forms of abuse and violence at the hands of various religious and political extremist groups. Nothing has changed since Jammu and Kashmir became union territories in 2019.
·The applicant does not have have any support from the Indian government in terms of safety. India being multilingual nation, Sikhism is the minority community in India so he cannot guarantee the security of his life. There is no equality, democracy, safety, peace in the state or country and it is extremely dangerous to return and live in Jammu and Kashmir.
·Police just work for political leaders or parties and the voices of common people are unheard. The news of killings and execution of people who have tried acting as police informants worsens the applicant’s fear and makes him believe that there is no effective security that he can get from police and state authorities in Jammu and Kashmir.
·The attack the applicant and his brother was subjected to while attending the marriage in a nearby village in 2009 was a reason why he was convinced that he and his brother would be killed if they were to stay in Jammu and Kashmir. A number of people were killed by terrorist or Mujahideen in that incident, the applicant was burnt severely and his brother was severely injured. He is still traumatised and extremely frightened that he would be killed and harmed if he were to return to his home country. Even after a complaint was raised to the Police and Court, justice has not been done to victims. State authorities including police are reluctant when it concerns safety of Sikh people as the government in pro-Hindu and anti-Sikh.
·These are the reasons the applicant’s parents decided to send him to Australia. He left India in the name of ([Alias 1]) to get out of India and save his life from Pakistan supported Militant group Mujahideen. He arrived in Australia on [date] November 2013.
·Sikh people from Jammu and Kashmir are forever branded as terrorists or Khalistani amongst Indian people living in other part of the country. We are viewed with heightened level of suspicion and this in turn will affect the applicant’s capacity to relocate and capacity to subsist in India. Given incidents of violence and abuse faced by Sikh religious minorities in India he will not be able to relocate to other parts of India, and there is a risk he might be harmed because of his identity.
·Due to the suppression and exclusion faced by Sikh people in India, he supports the Khalistan movement which aspires to create a separate state for Sikh people where Sikh people do not have to struggle for their basic necessities and can lead a dignified human life without discrimination and exclusion and free from fears and wants. He fears persecution for the reasons of his political opinion as a supporter of Khalistan. His fear is further worsened because of the incidences where Sikh people have been arrested by State authorities as Khalistani when in fact they had nothing to do with Khalistan.
·His father served in the army and after retirement he was appointed as a leader in Gurudwara near to his house. One of his previous lawyers misstated that his father is a political leader of BJP party which is not true.
·The applicant was not attacked at his home as mentioned in his visa application but in a nearby village. Since moving to Australia he has felt safe.
·He fears persecution in India for the reason of religion as a Sikh, membership of particular social group as a member of the Sikh community in Jammu and Kashmir and political opinion as a supporter of Khalistan movement.
In the 27 May 2024 submission, the applicant’s protection claims are set out as follows.
·a. Religion as Sikh
We have been instructed to submit that Review Applicant’s fear of persecution at the hands of Mujahideen group is for the reasons of his religion as Sikh.
·b. Membership of a particular social group
We are also instructed to submit that the Review Applicant fears persecution at the hands of Mujahideen militants for the reasons of his membership to a particular social group as ‘a member of the Sikh community in Jammu and Kashmir’ sharing a common characteristic religion, which is innate or immutable and not a shared fear of persecution. Furthermore, the Review applicant’s convention ground of fear is for the reason of his membership to a group of Sikh people supporting and wanting a separate state for Sikh people independent from India.
·c. Political opinion
We have been instructed that the Review Applicant supports a separatist movement which intends to create a sovereign state of Khalistan for people with Sikh religious faith. This secessionist movement intends to create a state which is autonomous Sikh homeland. The review applicant thus fears persecution in India for his political ideology and opinion supporting a movement intending to create a separate state for Sikh people.

A hearing response form dated 11 December 2024 was returned to the Tribunal, in which the applicant states: My claims for seeking protection remain the same and there are no changes.
In the 18 February 2025 submission, the applicant asserts that he:
·“Fears persecution in India due to his Sikh identity and his past and ongoing political activities advocating for Sikh rights. Specifically, he instructs that:
§Sikh activists in India continue to be subjected to arbitrary arrests, detention without trial, and extrajudicial killings.
§Indian authorities have a documented history of targeting Sikh minorities, particularly those who engage in activism or express political dissent.
§He fears that, due to his background and activities, he will be identified, surveilled, and targeted upon return to India”.
I discussed with the applicant his experiences in India and his fears on return there during the hearing.
REASONS AND FINDINGS
The issue in this case is whether the applicant faces a real chance of serious harm or a real risk of significant harm were he to return to India. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Identity and background
At the outset of the hearing the applicant confirmed that he knew what was written in his visa application and that he was satisfied it was complete and accurate.
The applicant has provided a copy of the biodata pages of his Indian passport. The passport he provided at the outset of the hearing was issued in 2012 and expired in 2022. When I noted that his document had a “Cancelled” stamp across it, the applicant told me that he obtained a new passport in 2023 from the Indian authorities. He produced the new passport during the hearing for my inspection. I asked him why he obtained this new document. He replied: “because of medical my hand was cut and they said you need a valid passport”. I asked whether he was planning to travel and he confirmed he was not. The applicant told me that he had no difficulties obtaining a new passport in 2023. I asked the applicant to provide a copy of the 2023 passport after the hearing. To date, this has not been provided.
I note the applicant indicated that he travelled to Australia on a passport which did not reflect his true identity. He does not have a copy of the document he used to enter Australia.
I have sighted the biodata pages of two Indian passports which contain photos which resemble the applicant, and corroborates his claimed identity and nationality. I do not have any concern as to the authenticity of those documents. On the basis of these documents, I accept that the applicant’s identity is as claimed.
The applicant has provided plausible details in respect of his asserted faith, and I accept that he is adherent to Sikhism as claimed.
I accept the applicant is who he claims to be and that he is a national of India. India is the receiving country for the purpose of this assessment
Travel to Australia, Family in Australia
The applicant stated that he travelled to Australia on a passport which belonged to a [Alias 1] with date of birth [date]. He indicated that his father and brother also both travelled to Australia on passports which did not reflect their true identities at separate points in time.
The applicant struggled to articulate why he considered it was not safe for him to travel on his own passport, which he had obtained in 2012. In his application he suggested he travelled on another person’s passport to save his life from the Pakistani Supported Militant Mujahideen group. When I asked about this, he replied “because of security issues”. I asked him to explain these security issues, to which he suggested he had “already mentioned that”. When prompted to provide further detail he stated “I wanted hide my identity I did not want anyone to know I was travelling”.
In the protection visa application form, the applicant declared in January 2018 that he had no relatives in Australia. However, during our discussion he disclosed that his brother was in Australia and was living with him at that time. When I invited the applicant to comment on this discrepancy, after a pause, he replied: “he was living with me but I think that is an error on my part I did not realise. And the reason is because he was here with protection visa and I did not want to put his life in any danger”. I asked how disclosing that his brother was seeking his own protection application to the Australian authorities, from whom he was requesting asylum. would put him in danger, and the applicant responded that this was because they are seeking protection from India. The applicant indicated that he and his brother continue to reside together currently.
During our discussion the applicant told me he applied for a passport in 2012 because his father was already in Australia at this time, and he also wanted to travel here. He told me that his father was in Australia from around 2006 or 2007 until 2014, and that when the applicant came to Australia he lived with his father for around one year. While it seems his father would have departed before the applicant applied for protection, I note that there is no mention in the applicant’s visa application of his initial travel to Australia being undertaken to be with his father.
Furthermore, I consider details provided in the visa application are suggestive of the applicant indicating his father was in India at the time the applicant now agrees he was in Australia. Discussing the unrest in his village prior to his 2013 departure, the applicant states:
My father approached to the highest Police Authority for the safety of our family . They said they cannot give any guarantee for the protection. They advised to be vigilant from the militants
I noted that in his application he wrote that his father approached the highest police authorities for his family’s safety. I asked how his father approached the police authorities if he was in Australia from 2006. The applicant replied “he was earlier doing it, then he came here, then he is doing it when he went back”.
I consider the applicant has not been upfront about the presence of his brother and his father in Australia. Furthermore, his evidence in respect of why he was fearful of travelling on his own passport lacked detail and was not persuasive.
Delay in applying for protection
The applicant has provided conflicting, confused and unpersuasive details as to why he waited four years and eight months to apply for protection. Noting he waited almost five years after arriving in Australia to apply for a protection, and asked why, if he feared harm on possible return to India, he would delay applying for so long. The applicant responded “earlier I was aware of that, but when I came to lodge then I lodged the application”. I again asked why he waited five years to submit his application, and he clarified: “earlier I was not aware”.
In his application he indicated he did not apply for protection because he did not know about protection visas. Asked when he learned about protection visas, the applicant replied: “My father was here so he told me about protection visas”. The applicant told me his father came to Australia in 2006 or 2007 and applied for protection, and that he travelled to Australia to be with his father. As such, I expressed that seemed unlikely he would not have known about protection visas until 2018.
He the changed his position and responded: “I did not lodge because I did not have money and I could not afford to lodge the application”. I asked whether his father was assisting him financially, and he replied that he did not ask him for any assistance with his application.
However, the applicant also told the Tribunal that when he came to Australia and he was able to support himself off his own personal savings for 3-4 years without employment, before he started working in 2016 (employment which is not disclosed in the visa application). When I asked where he had such personal savings from, noting he came to Australia straight after finishing school in India, the applicant replied that his father had sent him this money.
The applicant indicated he brother, [Mr A], came to Australia in 2016 and lived with him. When asked, the applicant told me he does not know when [Mr A] submitted his own protection visa, whether [Mr A] used the same migration agent to prepare his protection visa application, or the reasons why [Mr A] applied for a protection visa. The applicant told me that he and [Mr A] were living together when he applied for his protection visa, but that [Mr A] was sometimes staying with friends. Considering they are brothers of a shared faith who were cohabiting, and both claim to fear danger in India, I asked if there was a reason they would not have discussed the their applications with each other, to which the applicant responded that they both live separate lives. When invited the elaborate, the applicant replied: “the fear or danger is in India not here”. I put to the applicant for comment (discussed below) information from [Mr A]’s 2016 application, which was submitted two years prior to the applicant’s own application.
In post hearing submissions, it is contended that the applicant’s delay in applying was due to:
·Misinformation: Upon arrival in Australia, the Applicant was advised by unregistered migration agents that a protection claim should only be lodged with strong supporting evidence. He was unaware that a delayed application could undermine his credibility.
·Financial Hardship: The Applicant’s father had already returned to India, and he lacked financial resources to obtain legal assistance.
·Change in Circumstances: As conditions for Sikh minorities deteriorated in India, particularly with the increased targeting of Khalistan supporters, the Applicant realized the growing danger of returning and sought legal assistance to lodge his application.
On the applicant’s own evidence his father was in Australia with his protection application pending when he arrived in 2013. His brother arrived in 2016 and applied for a protection visa the same year. Given his close family members both submitted protection applications many years before the applicant decided to do so, I do not accept the applicant’s initial suggestions that he was unaware of the possibility of protection visas until he applied in 2018. In this context, I am also not persuade that he was misled by misinformation causing him to fail to submit his own application for almost five years.
The applicant provided conflicting and shifting evidence about his financial situation following his arrival in Australia which is not persuasive. I do not accept that the applicant was experiencing financial hardship which precluded him from applying for protection, noting he told me during the hearing he had ample savings to support himself, received support from his father, and began working a few years after coming to Australia.
No supporting material was referred to which identified which events led to the applicant realising he faced possible danger in India. Moreover, given his claims to have been subjected to actual violence and constant risk while in India, and given his brother and father who share his faith applied for protection years before he did, the basis for why he only realised he may face danger in India after number of years in Australia is unclear. It is unclear how, currently, he claims he both lacked the funds to apply but also the awareness that applying for a protection visa was necessary.
I am satisfied that the applicant’s significant delay in applying for a protection visa supports a conclusion that from 2013 until 2018 he did not sincerely fear for his safety in India. In light of his shifting and at times conflicting responses to questions on this matter, I draw an inference adverse to the reliability of the applicant’s evidence.
Delegate request
On 1 August 2019 the delegate wrote to the applicant at his specified email address inviting him to comment on a number of matters arising in his visa application within 28 days, including:
·His delay of 4 year and 8 months in applying for a protection visa after coming to Australia.
·Whether he has any evidence that his father is a popular Sikh leader in Jammu.
·That Indian law provides for freedom of internal movement, foreign travel, emigration, and repatriation, and the government generally respects these rights.
The delegate’s letter specified: “If you do not send us the information we need within the time we have given you, we can decide the application with the information we have at that time without asking you again”.
The applicant did not respond to the delegate’s request, and his application was refused on 11 September 2019.
The applicant told me that he never received the delegate’s email because he lost his phone and lost access to his email account prior to August 2019.
The applicant was notified of this decision on 11 September 2019 via email to the same email address the delegate used to contact him on 1 August 2019. There is no record of the applicant changing his email address with the Department. On 25 September 2019 he applied to the Tribunal for review, providing a copy of the delegate’s decision.
I put to him that the fact he provided a copy of his decision to the Tribunal, which was only provided to him via the email he claims he lost access to, suggests he did have access to his email address after the delegated contacted him on 1 August 2019. This indicated he did receive the delegate’s email but chose not to respond. He replied that he “has no idea”.
I consider the information before me supports a conclusion that the applicant did receive the delegate’s request for more information. In my view, his disinclination to respond to that correspondence is not supporting of him sincerely fearing return to India for any reason at that time
Experiences in Jammu
When asked why he applied for a protection visa, the applicant responded “we are in danger because we are Sihk, 1984 Genocide still same thing everything same”. He indicated if he returns to India tomorrow he fears jail, because he would not be listened to because he is a Sihk. He fears harm from the Indian government and the Indian intelligence authorities as well as Hindus. Asked whether he fears anyone else may harm him in the future in India, he replied the Indian government, and also Pakistan militants.
When asked about these militants, the applicant produced five images which he described as “Jammu Kashmir one of our village”. He said that these show “the militants kills our villagers and the Indian government do nothing”. The representative stated “these images are quite foreign to me” and indicated that they had not been submitted to the Tribunal previously. The representative agreed to provide a written explanation of what these images show and their relevance to the applicant’s matter, following the hearing. To date this has not occurred
I have had regard to these images. Two of these images appear to show rows of bodies surrounded by mourners. One depicts a man holding images of two other men. One shows a women walking past what may be bloodstains on the ground. The final shows armed men amongst a crowed. The events depicted, location and date have not been explained. Given the lack of contextual detail these images offer little insight into the situation the applicant may face in India in the future. I afford these images no weight..
I noted that the applicant’s father is a Sihk but he has returned to India, which may not suggest he faces a risk of danger there. The applicant replied that his father was sent back by Australian immigration authorities. Asked whether he has had any problems in India in the last decade, the applicant told me that he is facing problems but he does not like to tell the applicant about it.
Asked whether he was ever injured or harm while in India, the applicant replied that he was on one occasion at a wedding. This occurred when he was small. Militants attacked a wedding and he was burned. He confirmed that he was never injured in India after that, and that there were never any other attacks against him or his family. He indicated that after he finished his studies he came to Australia. I sought to clarify by putting my question to him a few times, expressed in different ways, however the applicant clearly reiterated that other than the attack at the wedding there were no other occasions when either he or his family were attacked.
I put to him that in his application he had mentioned a few other incidents. In February 2012 militants forced his family to leave their home. The applicant suggested that he mentioned this incident before when he spoke about moving houses within his village to the Tribunal. He then added that when his father returned from Australia in 2016, and that time they moved houses but remained in their village. This is different to the details set out in the visa application, where the applicant stated that he and his moved from his village to Jammu main town while the applicant resided in India.
I read to the applicant the details he provided in his application about the February 2012 attack. After this, he replied that the military took him and his family from their home to camps where they were protected from the militants.
I asked whether he was targeted by militants on any other occasion in 2012, and he replied “these things are still going on”. Invited him to explain whether anything else happened to him in India in 2012, and he replied that he came to Australia in 2013 and nothing else happened. I asked him directly whether militants tried to target him on any other occasions in 2012, and he indicated that they did not.
I put to him that in his visa application he claimed that in 2012 he was targeted again. He indicated he has been in Australia for eleven years and he cannot remember these things. I asked him how many times in his life he could recall being attacked by militants and he replied only at the wedding. I put to him that in 2012 he wrote in his application that he was targeted by INC militants. The applicant replied “this was the last incident when they tried to force us to join them”. Asked why he did not mention this incident when directly questioned, and he responded “I just want to forget about it all”.
I noted that the applicant provided three affidavits; one from his father, one from his uncle and one from a family friend. These statements are written in near identical terms. The only mention the applicant sustaining “33% burn marks” while at a wedding at a nearby town, within further elaboration on that event. Nor do they suggest the applicant or his family have ever been subjected to any other attacks.
In accordance with s 359A, I put to the applicant that his brother did not mention in his 2016 protection application that the applicant was injured in an attack on a wedding. I explained that this omission was notable, given his brother mentioned that he knew friends who were kidnapped and killed because they did not want to join the army, but there was no suggestion that his own brother was ever attacked, or subject any attempted forced recruitment. After a private discussion with his representative, the applicant indicated he would provide any comments on this information in writing within 14 days of the hearing. Submissions provided on 11 March 2025 do not provide any comment on this matter, and to date no such comments have been provided.
In the post hearing submission it is contended that the applicant’s inability to recall the events in 2012 was owing to the trauma and the passage of time impacting his ability to recall precise dates and details. It was also suggested in recounting his past experiences, the applicant prioritized the most extreme incident of harm, namely the 2009 wedding attack.

I consider the applicant has provide imprecise and unpersuasive details regarding the claimed events in India in 2009 and 2012 which lead me to conclude he is not recounting lived experiences. He provided confused responses when asked about the incidents he raised in 2012, which went beyond an inability to recall discreet dates and details, but rather suggested a lack of awareness of those events until I read to him from his application. The applicant identified during the hearing that the 2009 attack was the only time he was injured while in India, and he has emphasised that this was a traumatic and significant event. Given this, I consider his brother’s omission of any reference to this event in his application, when he does talk generally about attack on other youth in the village, is notable and suggestive of this incident not having occurred. I do not accept the applicant was ever involved in any attacks while resident in India. I do not accept that he was harmed or threatened by any groups, either state or non-state actors, while in India.
Khalistan
At the start of the hearing, when asked whether he wished to raise any preliminary matters, the applicant’s representative stated that the applicant wanted to show the Tribunal images of previously submitted photos. These purportedly related to a Khalistan protest and gathering. I invited the representative to take me to the submissions in which these photos were provided. It was then established that the photos had not been submitted to the Tribunal.
The applicant produced two images at hearing. I instructed the applicant and his representative to explain in writing after the hearing what the photos depict and how they are relevant to the applicant’s protection claims. To date, this has not occurred.
These two photos show close up images seemingly of the applicant. In on he appears to be inside a car and in the other he is next to a yellow flag. I asked the applicant when these photos were taken and he replied “when the referendum was in Minchinbury for Khalistan I voted over there”. I asked when that occurred and he replied: “last year”. Asked to be more precise, he responded “probably last year 2023 month I think roughly May”. As this time he appeared to refer to some documents before him. I asked whether he was suggesting May 2023 or May 2024, noting is currently 2025. He then responded 2023. Asked what the referendum was about, he responded: “Separate country, like everywhere New Zealand, in US, Canada”.
I asked the applicant about the Khalistan movement. He indicated that he has supported this movement since he was born in [year]. Asked when he became active in this movement, he replied “when I know we used to have our own country and the Indian government treated us like slaves”. When I sought to clarify, the applicant told me he first engaged in activities in support of Khalistan is the last four years. He was never active in India. I asked why he has only become active in the last four years if he has supported the movement his whole life. He replied that while in India he was not mature enough, and in Australia he studied about it.
When asked how he supports the Khalistan movement, the applicant told me: “I support like the people say we are voting in Australia now because it started in Canada then came to Australia if you want to vote for your own country”. I asked to explain what particular activities he has engaged in to support Khalistan, and he replied that he voted. I asked whether the only thing he had done to support Khalistan was to vote in a referendum, and he replied yes. When I confirmed, he told me that he had not done any thing else in support of the movement. Given this, I asked him why he would be considered an Khalistan activist, and he suggested “we always cast vote like here we vote for PM and that is how he became PM”.
The 2018 visa application makes no mention of the Khalistan movement or of him supporting the movement, despite his suggestion that he has supported it since birth. Even when he did mention this movement in his May 2024 statement, that material, along with the further evidence provided in December 2024 and February 2025 make no mention at all of the applicant taking part in a Khalistan referendum. When asked to comment on this, the applicant repaid that the thought he did mention it. I reminded him that at the outset he told me he knew what was in the visa application and he considered it to be complete and accurate. He did not explain this omission further.
When asked whether he was part of any Khalistan groups, the applicant indicated he is not. He suggested “not at the moment but I support my religion and do voting”. I asked whether all Sikhs are part of the Khalistan movement, and the applicant talked about Indian governments agents.
I asked the applicant to explain the relevance to the case in New York that had been submitted to the Tribunal, and to explain what it means for him. He suggested that it shows how the Indian government tries to kill “our people”. He said that they were trying to execute Khalistan movement people in America, Canada and Britain.
I noted that the February 2025 Tribunal submissions suggest the applicant fears harm due to being an individual who is “politically active or associated with Sikh advocacy”. Given this I asked him how he has been advocating for Sihk causes. The applicant responded that because his name is [name] they will perceive him as being in support of Khalistan. I put to him that was more a suggestion about assumptions or inferences that may be made about him, whereas I wanted to know whether he had actually done anything to take part in advocacy for either Khalistan or Sihk causes. The applicant replied “it is a movement and as it grows we will take part”. I asked what he is doing to grow the movement or take part in it now, and he said “support, whatever they need we can support”. I asked if he had any specific examples of the support he has provided, and he said when they asked for something I will do it. I invited him to explain what occurred the last time he was invited to do something to support the movement, and he replied that he voted because the movement asked people to do this.
At the end of the hearing, I put to the applicant and his representative that I was concerned that the applicant’s claims Khalistan support was not raised in the visa application, and that during our discussion the applicant was unaware of when the Khalistan referendum was, despite that on his own evidence the only involvement he has ever had in the Khalistan movement was voting in the referendum.
In submissions after the hearing, it was contended the applicant feared political persecution, which prevented him from openly disclosing his political views earlier and that he feared that disclosing his support for Khalistan could endanger his family in India. Additionally, his awareness and involvement in the movement developed over time after arriving in Australia. In 2023, he participated in a Khalistan referendum event, which he believes significantly increases his risk of monitoring and persecution by Indian authorities.
The applicant had the benefit of a migration agent in preparing his visa application and the various submissions made to the Tribunal before the hearing. In his application he raised various other claims against militant groups and the Indian authorities. It is unclear, and it has not been explained, why only the claimed related to Khalistan could not have been disclosed earlier due to fear of retribution. The post hearing submissions did not comment on the applicant’s uncertainty as to when the Khalistan referendum was, which was raised with the applicant as a concern.
The applicant renewed his passport with the Indian authorities in 2023, despite claiming to fear harm from them. When I asked why he renewed this document, he confirmed that he was not planning to travel but that he renewed it because the old one expired. The post hearing submissions contend the passport was renewed for medical purposes, without elaboration or supporting material. Those submissions also contend:
“The routine issuance of passports does not preclude future persecution, and it is common for governments to issue documents before taking punitive action”.
However, in my view voluntarily engaging with the authorities the applicant claims to fear harm from is not supportive of him holding a sincere, subjective fear of them. Particularly when this applicant claimed he was too fearful of the Indian authorities to even mention his support for Khalistan in his Australian visa application.
In accordance with s 359A, I put to the applicant for his comment information provided by his brother [Mr A] in support of his protection application. I noted that in a June 2020 statement, his brother stated that “most parents in Jammu & Kashmir are very much concerned and worried about the activities of Khalistan movement supporters. They have a regular program for radicalisation of youths in Jammu. Because of fear form them, parents want to keep their children overseas”. I explained that this may cast doubt on the applicant’s claimed life long supported for the Khalistan movement. When I invited the applicant to comment, his representative indicated that he would provide to comment later, after they had a discussion. After the applicant had a break to talk with his representative in private, the representative indicated that he had instructions to respond in writing to the s 359A information. The representative then asked the Tribunal to a send letter regarding the information identified under the “s 359A and s 359AA power”. I declined to so, noting this information had been put verbally, but suggested a copy of the hearing recording could be requested if that would be of assistance. The representative agreed that any comments from the applicant on the information put to him would be provide in written submissions, within 14 days of the hearing. Submission provided on 11 March 2025 do not provide any comment on this information, and no such comments have been provided to date.
I do not accept that the applicant is, or would be perceived to be, an advocate for Khalistan or any other Sikh causes. Nor do I accept he has ever a taken any action in support of any such causes. The very delayed presentation of these claims, along with the applicant’s uncertainty in respect of the only event he claims to have taken part in, was not persuasive. He struggled to provide any detail about what the claimed referendum involved and was unsure of when it occurred. Even when considering the photos he provided of himself in the car and next to the yellow flag, which he seems to suggest show at the referendum, in light of his unpersuasive evidence I do not accept he attended or took part in any such referendum. He demonstrated little awareness of the causes he claims to be supportive of and could, with any detail, speak to any advocacy that he engages in to advance these causes. He did not respond to the concerns raised in his brother’s application suggestion that most families in Jammu oppose the Khalistan movement. On the totality of the material before me, I do not accept that applicant is sincerely in favour of the Khalistan movement, or any other Sikh cases, or that he may become so in the foreseeable future. I do not accept he has ever engaged in any advocacy of action in support of Khalistan or any other Sikh causes, or that he may sincerely wish to do so in the foreseeable future. I reject these claims I their entirety.
Does the applicant satisfy the refugee criterion for protection?
As set out above, I have accepted that the applicant is Sikh.
I put to the applicant that his father has return to India and remained in the same village, seemingly without incident, which is not suggestive of risk of harm there on the basis of their shared faith. The post hearing submissions acknowledge that the applicant’s father has returned to there village, but contact his situation is different to his father because:

Unlike his father, he has publicly expressed support for Khalistan, which is a criminal offense under Indian law. As a young Sikh male engaging in pro-Khalistan political activities, he is at heightened risk of surveillance, detention, and harm upon return.
For the reasons set out above, I have not accepted that the applicant is in favour of Khalistan, nor I have accepted that he has ever engaged in any pro Khalistan political activities and I do not accept he may sincerely wish to do so in the foreseeable future.
I asked whether it was safe for Sikhs how live amongst Sikh communities, such as in Punjab State, and the applicant responded it was the same everywhere. I put to him information from the Australian Department of Foreign Affairs and Trade (DFAT), from the report already submitted to the Tribunal by his representative. I noted that in 2023 DFAT assessed that:
Sikhs in India generally face a low level of official and societal discrimination and violence. This may be because most Sikhs live in Punjab, which is a majority Sikh state, and Sikhs outside of Punjab have strong communities based around their places of worship. However, DFAT is not aware of violence or discrimination commonly occurring against Sikhs in other parts of India.[1]
[1] Department of Foreign Affairs and Trade (‘DFAT’), Country Information Report India, September 2023.
The applicant responded by mentioning Indian communities in [suburb], in Western Sydney, and then stated “we are not safe in India, Indian Government do not like us”. I redirected him back to the information from DFAT. He replied: “we are not safe the whole community that is why he try to referendum Khalistan. Indian government have their own controlled media and government. One Sihk called Amrit Paul good guy lives in Dubai. They saw situation in Punjab and went back but got put in jail for long imprisonment without any evidence. They can put us in jail more fake charges. India is not like Australia”.
Material submitted to the Tribunal includes documents related to actions of the Indian authorities seeking to suppress Khalistan movement leaders abroad, a map of Indian states affected by the 1984 Sikh genocide, and extract from an article on Islamophobia in India. The relevance of the Islamophobia article extract is not explained, however it does not comment on either Sikhs nor the situation in Jammu. The material cited in the May 2024 article which comments on Sikhs or the situation in Jammu is quite dated, and which publication dates ranging from 1994 to 2021. I prefer DFAT’s more 2023 assessment that Sikhs in India generally face a low level of official and societal discrimination and violence, that Sikhs outside of Punjab have strong communities based around their places of worship, and that DFAT is not aware of violence or discrimination commonly occurring against Sikhs in other parts of India outside of Punjab.[2]
[2] DFAT, DFAT Country Information Report India, September 2023.
Noting DFAT’s assessment, and that his father has returned to and remained in his village without incident, on the totality of the material before me, I am not satisfied the applicant face a real chance of serious harm from any actor in Jammu in the foreseeable future because he is Sikh.
As set out above, I do not accept that the applicant currently holds any sincere political opinions in support of any party or group in India, including the Khalistan movement or any other Sikh causes. The material before me does not suggest that merely owing to his religion he may be perceived as being in favour of any particular causes or groups and may be harmed a result, noting there is no suggestion that the applicant’s Sihk relatives who remain in Jammu have been imputed with any such profile owing to their faith. I do not accept that he has ever taken any actions in support of any such causes, and I do not accept he would seek to be politically active in India in the foreseeable future. I do not accept the applicant faces any chance of being harmed due to any perceived or actual pro Khalistan or pro Sihk political opinions, in India in the foreseeable future, because I do not accept he either holds or would be imputed with such views.
The applicant does not face a real chance of any harm, including treatment amounting to serious harm, in the reasonably foreseeable future for any reason were he to return to India.
I am not satisfied that the applicant has a well-founded fear of persecution for any s 5J(1)(a) reason. The applicant is not a refugee per s 5H.
The applicant does not meet the criterion in s 36(2)(a).
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa).
A ‘real risk’ and ‘real chance’ involve the same standard.[3] As set out above, I have not accepted that the applicant faces a real chance of any harm for any reason in the reasonably foreseeable future in India. This includes because he is a Sikh, or due to any perceived or actual political opinion, or for any other reason. It follows that the applicant also does not face a real risk of any harm, including treatment amounting to significant harm, in India in the reasonably foreseeable future for any reason.
[3] MIAC v SZQRB (2013) 210 FCR 505.
I am not satisfied that there are 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 the applicant will suffer significant harm.
The applicant does not meet the complementary protection criterion in s 36(2)(aa).
Conclusions
For the reasons set out above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or s.36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa.
Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
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5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…