2002708 (Refugee)

2002708 (Refugee) [2021] AATA 3671 (18 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:2002708

COUNTRY OF REFERENCE: India
MEMBER:Amanda Paxton
DATE:18 August 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 18 August 2021 at 9:55am
CATCHWORDS
REFUGEE – protection visa – India – religion – Dera Sacha Sauda member – particular social group – anti-drug campaigner – religious violence – fear of killing – attacks by Sikh Youth Federation – house fire – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J, 36, 65, 424AA
Migration Regulations 1994, Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 6 February 2020 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of India, applied for the visa on 21 June 2016. The delegate refused to grant the visa on the basis that the delegate was not satisfied the applicant is a person in respect of whom Australia has protection obligations under either the refugee or complementary protection provisions.
On 12 February 2020, the applicant validly applied for review of the delegate’s decision to the Tribunal, attaching a copy of the delegate’s notification and decision from the Department, to the application.
The applicant gave evidence at a hearing on 29 July 2021 by video conference. The Tribunal exercised its discretion to hold the hearing by MS Teams video as the hearing was held when COVID-19 pandemic restrictions were easing but still in place. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant.
The applicant was not represented at the hearing and the Tribunal was assisted by an interpreter of Punjabi. The video was clear throughout the hearing and the applicant’s answers were responsive and generally appropriate to the Tribunal’s questions. The Tribunal was satisfied that the applicant was able to give evidence and present arguments to the Tribunal throughout the hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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–5LA, 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.
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Credibility
When assessing claims, the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is considered in these findings.
The mere fact that a person claims fear of persecution for a reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide enough evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the claim, or to establish or assist in establishing the claim.[1] Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[2]
[1] Migration Act 1958, s.5AAA.
[2] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169–70.
A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[3] Care must be taken not to exclude from consideration the totality of evidence where a portion of it could reasonably have been accepted.
[3] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 per Foster J, p.482.
If an applicant’s account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt.[4] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts.[5]
[4] The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at [196].
[5] Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348.
CLAIMS AND EVIDENCE
The issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J of the Act in India and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that he will suffer significant harm. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Nationality
The applicant claims to be a national of India. He has provided the Department with a copy of the bio-page of his Indian passport, issued [in] 2015 and expiring [in] 2025.[6] This 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.
[6] [File number], f. 45 and AAT Doc Id. [number]
Background
On the basis of the documentary evidence before it and the applicant’s consistent evidence in his written application to the Department and at his Tribunal hearing, the Tribunal is satisfied the personal details provided by the applicant are credible. The Tribunal accepts the applicant was born [on date] (and is now [age] years old) in [Village 1], Punjab, India and acquired Indian citizenship at birth.[7]
[7] [File number], f. 38
On the same basis, the Tribunal accepts the applicant arrived in Melbourne, Australia [in] April 2016 as the holder of a Tourist (FA-600) visa, having departed Delhi, India [the previous day]. On 21 June 2016, the applicant lodged his Protection visa application in Australia. On 23 February 2016, he was granted a bridging visa A, in connection with his Protection visa application.[8] The applicant has not departed Australia since his arrival.
[8] [File number], and AAT Doc Id [number]
The Tribunal accepts the applicant’s consistent written and oral evidence that he is Punjabi, and he adheres to the Sikh religion. The Tribunal further accepts the applicant is married, having married [in] September 1999 in [Village 1], and has [a child], now [age] years old and unmarried, and [twins, aged], all who live together in [Village 1]. The applicant told the Tribunal his parents are deceased, as is his [sibling] and [another sibling] is married and living elsewhere, and that he has no close relatives in Australia. He gave evidence that he is regularly in touch with his wife and children on [a messaging service], and that he maintains contact with one friend in [Village 1].
At hearing, the applicant confirmed his statement that he can speak, write and read Punjabi, and has only limited reading and writing ability in Hindi and English.
The Tribunal accepts the applicant’s oral evidence, consistent with information provided in his Protection visa application, that he grew up in [Village 1], described as a good place, a large village formed by combining two smaller villages. On the same basis, the Tribunal accepts the applicant left school after Year [grade] to take responsibility for the family farm. The applicant explained that he owned a piece of land and leased some land for agriculture and dairy farming, but since his arrival in Australia he is now leasing his own land.
The applicant provided consistent evidence in respect of his activities in Australia in 2016, and on this basis, the Tribunal accepts the applicant has been working in various occupations in regional [Town 1], Victoria, such as fruit picking and pruning, and that he is currently working for [an employer in Town 1].
Written claims for protection
The applicant’s written claims for protection are first put forward in his statement signed 20 June 2016, attached to the Form 866C. In summary, he claims that he left India because he fears persecution as he is an active member of Dera Sacha Sauda (DSS). He claims the following.
·     He was born into a Sikh family and was inspired to join DSS many years ago by the leader, Pram Pita Shah Satnam Singh Ji Maharaj. According to the applicant, Pram Pita Shah Satnam Singh Ji Maharaj served from 1960–1990, and then the organisation’s leadership passed to Saint Gurmeet Ram Rahim Singh Ji (Ram Rahim).
·     DSS is a social-spiritual organisation, preaching and practising humanitarianism and service to others, and its popularity increased in India due to its good works, which included helping the poor. The good works noted in the applicant’s statement include blood donation camps, an educational and welfare society, a drug rehabilitation centre and hospital.
·     In May 2007, DSS was accused of insulting Sikhism, resulting in a serious law and order problem throughout various parts of Northern India. Many DSS followers were killed and thousands were injured in the sectarian violence.
·     Recently one of their followers was shot in Burj Jawahar Singh Wala, a village in Fazilka, and died following admission to hospital. The assailants are claimed to have opened fire from a car and shot Gurdev Singh on 13 June [no year noted]. Just months before, there had been widespread violence and rioting across Punjab.
·     Sikh priests gave a new ultimatum to the Punjab government to shut down all deras (DSS ashrams) in the state.
·     DSS members were accused of converting Sikhs to their organisation and were listed as the main enemy of the Sikh Youth Federation (SYF).
·     The applicant’s Sikh family were the first to become DSS members in his area, but other families have now joined the organisation.
·     As the applicant ran a drug rehabilitation centre in the area and was an anti-drug campaigner, the local mafia involved in the drug business became the main enemy of DSS.
·     Government authorities do not protect DSS members as they are against the organisation.
·     The SYF attacked DSS followers, made death threats against the applicant’s family, ransacked his family home after he left India and came looking for him.
·     The applicant’s family has been threatened with violence by Sikh members.
·     The situation in India has worsened and his family have warned him about the gravity of the situation and that he should not return to India.
·     If he returns to India, he will be killed.
Subsequent to his interview with the delegate, the applicant provided a letter of complaint to the Senior Superintendent of Police (SSP), Police [District 1], filed by the applicant [in] May 2013, concerning a land dispute, seeking action against them and that they restore access to a path, and stating that the people involved had abused the applicant and threatened to kill him. The delegate noted the very confused language of this letter suggested it was not genuine and did not place any weight on it.[9]
[9] [File number], Doc Id. [number].
The delegate accepted the applicant was a general supporter of DSS. However, the delegate was not satisfied the applicant was an active, devoted member of the DSS. The delegate did not accept the applicant and his wife were attacked by SYF members for being members of DSS; did not accept that the applicant’s house was ransacked in 2017 and that the matter was reported to the police who did nothing. The delegate did not accept that the applicant’s family continued to receive threats and experience problems from SYF members, or that the applicant has been targeted by the local mafia because he was involved in anti-drug campaigning.
CONSIDERATION OF CLAIMS AND FINDINGS
At hearing, the applicant told the Tribunal he had help from a friend to complete his Protection visa application who translated his dictated words into English. He is confident it is correct, and he does not wish to change anything.
The applicant’s involvement in DSS
In the statement accompanying his Protection visa application, the applicant claims that he and his family are longstanding members of DSS. According to the Department of Foreign Affairs and Trade, and in line with the information provided by the applicant in his statement, this is ‘a social welfare and spiritual organisation that has a history of conflict with the Sikh community’.[10] General country information indicates that the DSS was founded in 1948 by a pious Sikh leader from Baluchistan. Headquartered in Sirsa, Haryana, DSS cites its key principles as: ‘secularism; equality; anti-materialism; truth and faith; meditation; strict individual discipline; strict social discipline; and hard work.’[11] DFAT reports that DSS declares itself a ‘confluence of all religions’ and claims on its website to have 60 million followers worldwide.[12]
[10] DFAT Country Information Report India, 10 December 2020, 3.73.
[11] DFAT Country Information Report India, 10 December 2020, 3.73.
[12] DFAT Country Information Report India, 10 December 2020, 3.73.
The applicant told the Tribunal that he first became aware of DSS around 2005 when one of his workers told him about it, and in 2007 he started going to DSS gatherings every Sunday at a dera in a neighbouring town where about 100–250 families gathered. He claimed he went bi-annually to the dera in Sirsa, about 4 hours away, to listen to religious discourse and do community service.
In response to the Tribunal’s invitation to provide additional detail about his personal practice as a member of DSS, the applicant stated that they gathered for satsang (spiritual discourse), where they listened to someone preaching. When prompted, he later revealed that he chanted (as meditation) morning and evening. The applicant was unable to articulate the principles of DSS beyond a belief in god, serving humanity, and encouraging people to join DSS. As discussed with the applicant, the Tribunal would expect that a person who had been actively involved in DSS could be more comprehensive and detailed in his responses, for example by mentioning other key principles such as equality; anti-materialism; truth and faith; strict individual discipline; strict social discipline; and hard work.
The applicant was invited to elaborate on his humanitarian activities as a follower of DSS. He told the Tribunal that if a devotee had any issues, they listened and collected funds for that, or if they knew of someone with a drug problem they would help that person to get off drugs. In this regard, the applicant said they would refer such people to a small hospital they had, where they would be kept seven days in the hospital and given intravenous glucose. When asked to expand on his own role in these endeavours, he provided general comment about helping poor people and serving humanity, but eventually said he was a member of a four-person DSS committee in the village.
The applicant did not identify other activities of the committee in a specific, clear or detailed manner but indicated that when a problem was brought to their attention they decided on a solution to the problem. He said the committee is scattered now, that its records were lost in a fire, but the organisation still exists, and they continue to be persecuted for their beliefs. The Tribunal was not satisfied the applicant had an active involvement in these activities because he provided only very general responses although was invited to be more specific. For the same reason, the Tribunal does not accept the applicant ran a drug rehabilitation centre in the area and was an anti-drug campaigner as claimed in his statement.

The Tribunal noted that it is indicated in the delegate’s decision record provided to the Tribunal by the applicant that in his Departmental interview the applicant specifically mentioned his involvement in DSS “blood donation camps”. The applicant said he had forgotten to mention this. The Tribunal acknowledges that the applicant may have memory lapses and forget aspects of his activity but considered that he was provided with opportunity and prompting to be expansive and that he would have referred to this activity, along with additional detail of other activities, had he been actively involved in them as claimed.
Noting general information that DSS has a presence in Australia, the Tribunal enquired whether the applicant had reached out to DSS followers in Australia.[13] He indicated he was aware there were DSS organisations in Australia because when he was in India there used to be announcements about DSS activities in Australia. However, since his arrival in Australia the dera (in Sirsa) has been shut down and current congregation leader, Ram Rahim, has been imprisoned so it has become difficult for DSS followers to declare themselves. He prefers to stay quiet because there is persecution in India and even in Australia the Sikh community regards DSS followers with hatred.
[13] Dera Sacha Sauda Australia |Preaches Humanitarianism and Selfless Service
As discussed with the applicant at hearing, the Tribunal acknowledges that the activity of DSS has declined since the applicant’s arrival in Australia with the imprisonment of Ram Rahim, convicted in 2017 of two counts of rape, and in 2019, a conviction for murder.[14] However the Tribunal considers that the applicant is free to engage in any religious (or similar) practices in Australia. The Tribunal has considered the applicant’s explanation that his local Sikh community despises DSS followers and that this may be socially uncomfortable for the applicant, but considers the applicant has provided no evidence to support a view that there is reason to fear the Sikh community in Australia or that this would be a reason to avoid DSS in Australia if he were committed to following DSS. The Tribunal considers his lack of any engagement with DSS since his arrival in 2016 raises questions about his claim to be an active member of DSS both in the past, currently or in the future.
[14] DFAT Country Information Report India, 10 December 2020, 3.74–3.78
The applicant indicated that he stays in touch with DSS issues sometimes on the news, and he was correctly aware that recently Ram Rahim was permitted parole to visit his sick mother.[15] He stated that he continues to give a tithe to the poor but no longer to the dera as it is shut. The applicant put the view that Ram Rahim was jailed because the government made false allegations against him because it resented the fact DSS had 17 million followers including international organisations, and that DSS were gaining popularity for doing things that government should be doing like making sportsgrounds. The Tribunal considered the applicant’s commentary on Ram Rahim’s conviction and jailing appeared spontaneous and his knowledge of current news items suggested genuine support for DSS.
[15] Dera chief Gurmeet Ram Rahim seeks parole to meet ailing mother - Hindustan Times
Taking into account the applicant’s consistent claim to support DSS, country information discussed with the applicant about the growth in DSS popularity across the Sikh community in the north of India, and his accepted sympathy for DSS, the Tribunal accepts the applicant is a general supporter of DSS. However, the Tribunal considered the applicant’s responses in respect of DSS principles, and his claimed practice and activities as a follower of DSS in India were vague, general and unconvincing, lacking the specificity the Tribunal would expect if he had been involved as an active devotee of DSS since 2007 as claimed. The Tribunal does not accept the applicant was an active member of DSS and finds that as a general supporter he has limited links with DSS. For the same reason, the Tribunal does not accept he was listed as an enemy of the Sikh Youth Federation or accused of converting Sikhs to the DSS.
Harm experienced in India
The applicant claims he first experienced incidents against him as a follower of DSS in 2013. In his statement to the Department, the applicant identified the SYF as the perpetrators of the claimed harm against him, but at hearing he referred to ‘Sikh organisations’. When the Tribunal asked him to be more specific about who was involved in these incidents, the applicant’s response was vague and confused, but he concluded by saying that the incidents were not in the name of any organisation but the actions of local Sikh people from the village. On the evidence of the applicant, the Tribunal does not accept that the applicant was the target of adverse conduct by SYF, or any other Sikh organisation.
At hearing, the applicant gave evidence that Sikhs from the village would yell abuse and sometimes try to prevent him from going to the fields to put pressure on him to persuade him not to follow DSS. He claimed he was involved in many small incidents and sometimes small fights broke out. He provided the example of an incident in 2014 when he claimed he was followed when he was going to the farm and people hit him with fists incurring injury. He claimed he went to hospital for medical attention on this occasion, but he does not have any medical or police reports from this time. This was the applicant’s first mention of an attack in 2014 requiring medical attention. He stated he did not mention this incident at an earlier time because there were many such incidents.
The Tribunal is concerned about the applicant’s omission given he claims his injuries were serious enough to warrant medical treatment. These concerns lead the Tribunal to have doubts about the credibility of the applicant’s evidence. The Tribunal is also concerned that the applicant has no supporting evidence for this or other claims. The Tribunal acknowledges that Protection visa applicants may not have proof to support their claims and takes a liberal attitude concerning proof of persecution. However, in the applicant’s circumstances, the Tribunal has difficulty accepting the applicant has no relevant evidence to support this or other claims, leading the Tribunal to hold doubts about the credibility of the applicant’s claim to have been injured in fights with Sikhs from the village because of his support for DSS.
At hearing, the applicant described another occasion in May 2015 where he and his wife were travelling to town when about 15 people from the village attacked them, beating them with sticks and wounding his wife with a farm tool. The applicant’s account of subsequent events was confused and vague. He said that the hospital was not allowed to make a record of their attendance because their names were on a list because the government backed those (Sikh) organisations. Asked about this list, the applicant said that when they were in hospital their names were registered and bandages applied. They remained in hospital for two days and were then released without any documentation. The applicant did not provide any more meaningful information about this list, and the Tribunal formed the view that there was no substance to this claim. Further, the Tribunal notes the applicant and his wife received what appears to be normal treatment for injuries and were admitted for two days, suggesting that the applicant was not subject to discriminatory service. The Tribunal does not accept the hospital had a list or that, in the event they needed medical treatment for some reason, the applicant and his wife received inadequate treatment because of DSS connections.
The applicant could not explain why more treatment was required but he claimed he and his wife then went to a private hospital. They did not receive paperwork from this hospital either, and any documentation they did receive was misplaced when his house was attacked. The Tribunal considered the applicant’s account was again confused and vague giving rise to the view that these events did not occur as claimed.
In connection with this incident, the Tribunal enquired whether the applicant had made a report to the police. His response was again confused but in essence he said that if someone goes to the local police station, the police record what they’re told but they do not register the complaint and take action. For this reason, the applicant made a complaint to the SSP in [District 1], the nearby city, but the officer knew the people in his village and he turned this into a reconciliation matter and indicated that everything was fine between the two parties. The applicant told the Tribunal that government authorities are supportive of the Sikh organisations and the police charge money for action.
At hearing, the Tribunal noted the applicant had provided to the Department a document purporting to be a translation of a complaint letter to the SSP, [District 1], filed by the applicant [in] May 2013, concerning a dispute about access to a path, and stating that the people involved had abused the applicant and threatened to kill him. The applicant stated that this referred to a separate incident in 2015. He said that ultimately, he obtained access to the land he leased because he was given access through his friend’s farm, but the main route remained blocked to him.
In assessing the applicant’s evidence, the Tribunal observes that the time frames of these events are jumbled and inconsistent. The applicant’s letter of complaint to the SSP [District 1] concerning access to property is dated 2013, not 2015 as claimed at hearing. As discussed in the delegate’s decision provided to the Tribunal by the applicant, the applicant told the Department at interview that he and his wife were attacked by SYF members and were admitted to hospital and did not get proper attention in 2013 not 2015 as he told the Tribunal at hearing. The Tribunal acknowledges that the applicant’s memory of dates may lapse as a result of the passage of time, but the applicant’s very confused and inconsistent memory of events significant to his claims leads the Tribunal to have serious concerns about their credibility. The Tribunal would also expect that there would be closer consistency in the year of the claimed event where both he and his wife were attacked and attended hospital and reported the matter to police. Taking these concerns together, the Tribunal considered the applicant an unreliable witness, giving rise to serious concerns about his credibility. On this basis, the Tribunal does not accept the applicant was injured by Sikh people on his way to the farm at any time, or that the applicant and his wife were attacked by 15 people receiving injuries which required hospital treatment. The Tribunal does not accept the applicant tried to make a report to police about this matter but did not receive their protection because they supported Sikh members of the village.
The applicant departed India for Australia in 2016, at least a year and possibly three years, after the claimed incident where he and his wife were injured. He said that small things occurred on a regular basis where people in the village continued to enquire why he was going to DSS. He stated that he looked for something similar to his farm in Uttar Pradesh but could not find anything and then he came to Australia. The Tribunal considers that in the event the applicant feared harm in his village as claimed, he would have considered relocating to another area at an earlier time, leading the Tribunal to further doubt the credibility of the applicant’s claims.
Attack on his house in 2016/2017
At hearing, the Tribunal asked the applicant to expand on his written statement that after his departure from India, people continued to look for him. He stated the same people from the surrounding villages – people he knew – who had attacked and abused him previously came to his house looking for him in June 2016 after an incident where a DSS follower was shot. According to the applicant, these people then burnt his first house down. The applicant’s response to further enquiry about this house fire was vague and incoherent. The Tribunal tried to establish how and when the fire occurred, and where his family were at the time, whether they were safe or harmed. He said his family were pushed around and then the people left.
The Tribunal acknowledges that the applicant was not present for this event but given the serious nature and significance of this incident to his claims, the Tribunal would expect that his family would have provided him with more detail. The Tribunal also raised concerns that this was the first time that the applicant had claimed his house had been burned down. The applicant responded that he is not a lawyer and that to him “ransacked” and “burnt” were the same, and that his family don’t always give him 100% of the information. The Tribunal considers that the difference between a house being ransacked and burned down is of such significance that this is not a plausible explanation. The Tribunal also notes the delegate’s decision provided to the Tribunal by the applicant indicates the applicant told the Department at interview that this event occurred in 2017 not 2016 as he stated at hearing. Again, the Tribunal accepts that memory lapses can lead to mistakes in dates, but the Tribunal gives this inconsistency weight given the Tribunal’s concerns about other aspects of the applicant’s evidence.
The applicant gave evidence that he has no evidence of this incident, for example in the form of a report to the police. Inconsistent with the information provided to the Departmental delegate at interview as set out in the delegate’s decision record provided to the Tribunal by the applicant, the applicant said his wife did not report to police that their house was burned down. He explained that there was no point going to the police because a report could not be submitted online, and the police would not make an official report but would take money from them and take no action. In addition, he said as his wife is a woman it was more difficult for her. In response to the Tribunal’s suggestion that his wife could have sought assistance from someone if needed, the applicant indicated that people would not assist if they were not on her side. As discussed with the applicant, the Tribunal finds it difficult to believe that his wife could not find someone to assist her in making a report, given an incident as serious as her house being burned down by attackers. The Tribunal further considers the inconsistency in the applicant’s evidence concerning whether his wife reported this incident supports the conclusion that this event did not occur as claimed.
As discussed below, country information put to the applicant in summary at hearing indicates that inadequate infrastructure, resourcing and training compromise police operations, and that the effectiveness of law enforcement varies widely throughout the country.[16] Independent country information also indicates there may be difficulty in getting police to file a First Information Report which is necessary to trigger an investigation of an alleged crime, and that corruption within the police force remains a problem.[17] The Tribunal acknowledges obstacles to seeking justice may exist but does not find evidence to support the view that these concerns would be such as to prevent the applicant’s wife seeking to make a report or obtaining evidence that this event had occurred. The Tribunal would expect that the applicant could produce some corroborating evidence that his house had been destroyed. The absence of any supporting evidence and the applicant’s fluid, vague and inconsistent evidence in respect of this event lead the Tribunal to hold serious concerns about the credibility of this claim.
[16] DFAT Country Information Report India, 10 December 2020, 5.7–5.9.
[17] ‘Freedom in the World 2021 – India’, Freedom House, 3 March 2021, p.14, 20210304092913.
The Tribunal has considered the applicant’s evidence in respect of his claim that his house was attacked and burned because of his support for DSS and the Tribunal is not satisfied he has provided a credible account. For this reason, the Tribunal does not accept that people opposed to his support for DSS came looking for the applicant and burned his house down or in any other way damaged it after he left India.
Targeting by local mafia
At hearing the applicant told the Tribunal in very vague terms that the local mafia referred to in his statement consisted of local people from Sikh organisations who were against the drug services DSS offered. As above, the Tribunal does not accept the applicant ran a drug rehabilitation centre in the area or worked as a local anti-drug campaigner. It follows that the Tribunal does not accept the applicant was targeted by local Sikh people involved in the drug business because DSS campaigned against drug use.
Information was put to the applicant under s.424AA of the Act
At hearing, information was put to the applicant under s.424AA of the Act. The applicant was advised that the Tribunal had before it information that the applicant has presented false claims in connection with his application for Protection, and that he was in Australia for economic reasons. It was explained to the applicant that this information is relevant because it may lead the Tribunal to the view that the information he provided in connection with his application is not correct and raise doubts about whether the Tribunal can rely on the applicant’s information and his general credibility. The Tribunal advised the applicant that the consequences of this conclusion is that, subject to any comment or response he made, the information would be the reason, or part of the reason, for the Tribunal affirming the decision under review. The applicant was offered time to reflect on his response but indicated that he did not need more time.
The applicant stated that as a person who lives with his family in comfort in their own home with a couple of servants, he does not need to leave his family for economic reasons, something he does not want to do. He said that while he is not able to provide any proof, all the information he has given is true and he is in Australia out of compulsion not choice. The Tribunal has considered the applicant’s response to information put under s.424AA of the Act, but gives the information little weight in light of the credibility concerns arising from the applicant’s vague, often incoherent oral evidence and the inconsistencies across his testimony.
The Tribunal has considered the totality of the evidence before it in respect of the applicant’s claims, and does not accept the applicant was the subject of harassment, threats or violence at the hands of Sikh people in the village because he supported DSS.
Fear of harm on return to India
The Tribunal has not accepted the applicant’s claim he suffered harm in India because he was an active devotee of DSS. However, the Tribunal has accepted above that the applicant is a general supporter with limited links to DSS. The Tribunal has considered the applicant’s claim to fear harm on return to India on this basis. In his statement accompanying his Protection visa application, the applicant claims the situation in India has worsened and his family have warned him about the gravity of the situation. He claims he will be killed if he returns to India.
The applicant told the Tribunal at hearing that his wife and children, who support DSS in a spiritual but not practical sense, moved to [District 1] in 2016 where they lived for 1.5 years before moving into a house newly built on land they owned outside their village of [Village 1]. His children are studying. He said his wife and family have not been bothered by anti-DSS people because people are remaining in their homes because of COVID-19. While recognising that COVID-19 may limit people’s activity to some extent, the Tribunal considers that the family’s return to a new home in their village is indicative that they are not in fear of harm from anti-DSS people, or anyone else.

At hearing, independent country information, also in line with information provided by the applicant in his statement, was discussed with the applicant indicating that since 2007 when the current DSS leader, Saint Gurmeet Ram Rahim Singh Ji, angered the Sikh clergy by dressing up as Guru Gobind Singh, the tenth Sikh Guru, tensions between DSS followers and Sikhs arose. These have resulted in some attacks, violence and protests between the two communities, sometimes triggered by allegations of ‘sacrilege’, perceived slights and/or criminal motives.[18] Taking into account media reports of 2016 that a prominent DSS supporter was shot in Burj Jawahar Singh Wala, a village in Fazilka, and died following admission to hospital, the Tribunal accepts that an incident, referenced by the applicant in his statement, was one such occasion.[19]
[18] Punjab on the boil as discontent brews | Business Standard News (business-standard.com)
[19] Sacha Sauda Disciple shot at in Burj Jawahar Singh Wala by unidentified assailants | Sikh24.com
As discussed with the applicant at hearing, there are reports of isolated attacks on DSS members. However, as discussed with the applicant, the Tribunal considers that country information indicates these have been infrequent, sporadic and localised. The Tribunal also looks to current advice, discussed with the applicant that DFAT is unaware of any major incidents of violence targeted specifically towards followers of the DSS in India.[20] In this respect the Tribunal notes the notes the incident in Fazilka referred to by the applicant occurred in 2016, now five years ago, and that violence targeted specifically towards followers of the DSS in India is not a feature of conditions in India. In response to this assessment, the applicant said that the events he described had happened to him personally although there were large-scale actions against DSS. The Tribunal takes account of the applicant’s response but based on the independent country information before it, does not accept that a person of the applicant’s limited links with DSS in India, is a person of adverse interest to the SYF, Sikh activists, or Sikhs generally. The Tribunal does not accept the applicant will be killed if he returns to India for this reason. The Tribunal does not accept there is a real chance the applicant faces serious harm for the reason of his support for DSS if he returned to India now or in the foreseeable future.
[20] DFAT Country Information Report India, 10 December 2020, 3.79.
Independent country information indicates that in 2007 Sikhs in Punjab called for closure of deras, and renews its calls to shut down deras from time to time, but as the applicant has described deras have remained open and functioning.[21] However, as noted by the applicant and discussed above, the level of influence and congregation numbers have been much reduced since the convictions for rape of leader Ram Rahim in 2017.[22] 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. The Tribunal also accepts that as a general supporter of DSS the applicant may feel some stigma, as a result. However, the Tribunal does not accept on the available evidence that any such attitudes impair his ability to continue as a general supporter of DSS, in the limited manner of his past and current practice. The Tribunal is satisfied the applicant does not face harm from gunmen or anyone else as a follower of DSS, Sikh priests who seek to shut down deras, or members of the SYF as a person accused of converting Sikhs. The Tribunal does not accept there is a real chance the applicant faces serious harm for these reasons if he returned to India now or in the foreseeable future.
[21] The Tribune, Chandigarh, India (tribuneindia.com) /2007/20070521/
[22] DFAT Country Information Report India, 10 December 2020, 3.78.
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 support for DSS) or for any other reason. On the country information before it, the Tribunal finds there is no real chance of the applicant needing protection from Convention-related persecution, and the police or other State authorities denying him protection. 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 limited links with DSS, and the lack of reliable evidence to indicate any such systemic practices by the Indian authorities.
Assessment: Refugee criterion
The Tribunal now assesses whether the applicant has a well-founded fear of Convention-related persecution, now or in the reasonably foreseeable future, having regard to the analysis and findings above and relevant country information.
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 the reason of his support for DSS, or any other reason, in his home area of [Village 1] 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.
The Tribunal finds the applicant does not have a well-founded fear of persecution.
Assessment: Complementary protection
The Tribunal has considered whether on the evidence before it, 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. The Tribunal 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 DSS put him at risk of being targeted by Sikhs or Sikh organisations including the Sikh Youth Federation. The Tribunal acknowledges and accepts that he and his family may have concerns about the communal violence. In this regard, the Tribunal accepts that the applicant may have concerns relating 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 applicant is a person in respect of whom Australia has protection obligations under 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 criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Amanda Paxton
Member

ATTACHMENT – Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
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.
…
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.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2021] AATA 3671

18 August 2021

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