2004641 (Refugee)

2004641 (Refugee) [2023] AATA 3317 (12 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2004641
COUNTRY OF REFERENCE:                   India
MEMBER:Rachel Da Costa
DATE:12 September 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 12 September 2023 at 12:32pm
CATCHWORDS
REFUGEE – protection visa – India – Federal Circuit Court remittal in part – previous tribunal affirmed primary applicant husband/father’s refusal and considered secondary applicants wife’s and son’s claims against complementary protection criteria only – remitted to consider claims against refugee criteria only – religion and political opinion – husband/father member of and worker for socio-religious organisation, and supporter of political party – harassment, threats and attack by members of another political party – recent threats to daughter/sister in home country – son’s physical and mental health and fear of harm from socio-cultural and economic conditions – no organisation membership or activities in Australia – son’s education and work without current medication – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36(2)(a), 48A, 65, 424A
Migration Regulations 1994 (Cth), Schedule 2
CASE
SZGIZ v MIAC [2013] FCAFC 71
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicants Protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of India, applied for the visas on 12 December 2013 and the delegate refused to grant the visas on 17 April 2015.
This case has a slightly unusual history. This Tribunal matter and decision arises out of a partial remittal by the Federal Circuit Court of Australia (FCCA) (as it then was) on 25 February 2020 in respect of the claims of [the applicants]. As explained further below, the applicants are in fact the second and third applicants in FCCA case [number], which is an application for judicial review of Tribunal case number 1619170 made on 9 April 2018. The first-named applicant in that Tribunal case and in the FCCA case is [Mr A]. [Mr A] is the husband of [the first applicant] and the father of [the second applicant].
The background to the case is partly set out in the previous (differently constituted) Tribunal’s decision (case number 1619170) in respect of [Mr A], [the first applicant] and [the second applicant], dated 9 April 2018, as follows:
2. The applicants who are citizens of India applied for the visas on 12 December 2013. The first named applicant (the applicant) claims to fear harm as a result of being a follower of Dera Sacha Sauda and referred to difficulties he faced prior to his departure at the hands of members of the Shromoni Akila Dal (SAD). He claims he has serious concerns as to his own safety and the safety of his son who suffers medical conditions.
3. The second and third named applicants, being the wife and son of the applicant, submitted Part D forms being applications for members of the family unit who do not have their own claims for protection. However, at hearing they made claims in their own right as to fearing return as followers of Dera Sacha Sauda and as family members of the applicant who had been threatened. The third named applicant also claims to fear return due to the youth drug abuse in India.
4. As outlined in the Department decision[1] and in evidence to the Tribunal the applicants arrived in Australia [in] May 2008 and applied for protection visas on 19 June 2008, which were refused by the Department on 16 September 2008. The Tribunal on 18 March 2009 affirmed the decision of the Department. As it was determined this matter was SZGIZ affected the applicants were permitted to make further applications, which this matter pertains to. The applicants then applied for protection visas on 12 December 2013.
5. On 13 March 2015 the first named applicant was interviewed by the Department. The Tribunal has listened to the tape of that interview and where relevant the evidence from that interview appears in this decision.
6. The delegate refused to grant the visas on 17 April 2015 on the basis that the applicant’s claims are not well-founded and his evidence was not credible as to being a follower of the Guru, Gurmeet Ram Rahim Singh and the difficulties he claims he faced in the past.
7. The Tribunal (differently constituted) found the Tribunal did not have jurisdiction in this matter on 27 October 2015 on the basis that the applicants were out of time in seeking review of the delegate’s decision.
8. On 14 October 2016 the Federal Magistrate’s Court ordered that this matter be reconsidered on the basis that a lawful application was made.
9. The applicants appeared before the Tribunal on 26 March 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
[1] The Department decision was attached to the Application for Review.
The previous Tribunal explained the effect of case SZGIZ v MIAC[2] and its relevance to the application for review as follows:
12. Relevantly, in SZGIZ v MIAC [2013] FCAFC 71, 3 July 2013 (`SZGIZ’), the Full Federal Court confined the effect of s.48A to the making of a further application which duplicated the same essential criterion for the grant of the visa as in the earlier unsuccessful application. For example, the Court found that s.48A did not prevent a non-citizen who had made a valid application on the basis of the refugee criterion in s.36(2)(a) from making a further application on the basis of the complementary protection criterion in s.36(2)(aa) whilst he or she remained in the migration zone. According to SZGIZ, a person who had previously applied for and been refused a protection visa only on the basis of one of the criterion in s.36(2) appeared eligible to lodge a further valid application on the basis of one of the other criterion. However, the Court’s reasons suggest that such a person could only have their later claims assessed against those criteria upon which they had not previously made an application. The central concern for the purpose of establishing the s.48A bar, and the extent of the Tribunal’s powers on review, appears to be the criterion against which the applicant has previously been assessed.
13. As was raised with the applicants at hearing, the information before the Tribunal indicates that the applicants’ initial application was refused by the Department on 16 September 2008. The visa application under review is a valid application because the applicants are considered `SZGIZ-affected’ as they have not left Australia since final determination of their previous protection application, which preceded complementary protection laws. Pursuant to SZGIZ, the applicants have standing to make the application under review to afford hearing of their complementary protection claims. As the applicants have previously had their claims for protection assessed under s.36(2)(a), on the terms of SZGIZ, the Tribunal must confine its consideration to whether they satisfy the requirements of ss.36(2)(aa) and (c).
14. The Tribunal has proceeded (as indicated at the hearing) to consider the applicants’ claims in relation to the complementary protection requirements of s. 36(2)(aa).
[2] [2013] FCAFC 71 (‘SZGIZ’)
The effect of SZGIZ was to allow [Mr A], [the first applicant] and [the second applicant] to make a second protection visa application. The previous Tribunal found that as [Mr A], [the first applicant] and [the second applicant] had already had their claims for protection assessed under s 36(2)(a) (the ‘refugee criterion’), the Tribunal was required to confine its consideration to whether they satisfied the requirements of ss 36(2)(aa) and (c) and proceeded to consider their claims in relation to s 36(2)(aa) (the ‘complementary protection criterion’).
[Mr A], [the first applicant] and [the second applicant] applied to the FCCA for judicial review of the previous Tribunal’s decision. On 25 February 2020, the FCCA declared, by consent as follows:
That the Second Respondent failed to conduct the review required of it under section 414 of the Migration Act 1958 (Cth) (“the Act”) in respect of the claims of the Second Applicant and the Third Applicant to be entitled to the grant of a protection visa under section 36(2)(a) of the Act.
By consent, the Court ordered that:
An [sic] writ to issue in the nature of mandamus requiring the Administrative Appeals Tribunal to conduct the review required of it under section 414 of the Act in respect of the claims of the Second Applicant and the Third Applicant to be entitled to the grant of a protection visa under section 36(2)(a) of the Act and that the Administrative Appeals Tribunal be reconstituted for that purpose.
To be clear, the reference in the Court’s order to the ‘Second Applicant and the Third Applicant’ is to [the first applicant] and [the second applicant] ([Mr A] is the First Applicant in that case). The Order was made on the basis that the previous Tribunal had not completed its task in respect of [the first applicant] and [the second applicant] because it had only considered whether they were entitled to the grant of a protection visa under the complementary protection criterion. The current Tribunal’s understanding of the reason for this is that until the hearing on 26 March 2018, [the first applicant] and [the second applicant] had only ever claimed to be owed protection on the basis of being members of [Mr A]’s family unit. However, in the hearing on 26 March 2018, they raised substantive protection claims of their own and the remittal was made on the basis that these substantive claims should have been considered against the refugee criterion as well as the complementary protection criterion.[3]
[3] SZGIZ.
Accordingly, the task of this Tribunal is only to consider the claims for protection of [the first applicant] and [the second applicant] against the refugee criterion in s 36(2)(a). As explained above, their claims have already been considered by the previous Tribunal against the complementary protection criterion in s 36(2)(aa) and that Tribunal found they did not meet the complementary protection criterion. [Mr A]’s claims for protection have already been considered and determined under both criteria.
CLAIMS AND EVIDENCE
Background
In her protection visa application form 866D (Application for a member of the family unit), [the first applicant] provides the following information. She was born in [Year] in [Town 1] (Amritsar), India. She speaks, reads and writes Punjabi. She is a Hindu and an Indian citizen. She travelled to Australia on her Indian passport issued [in] 2004. Before coming to Australia, she always lived in India. From [Year] to [Year], she attended [High School], [Town 1]. She is a housewife.
In his protection visa application form 866D (Application for a member of the family unit), [the second applicant] provides the following information. He was born in [City], India in [Year]. He speaks Punjabi and he speaks, reads and writes English. He is a Hindu and an Indian citizen. In India, he attended [School 1] in [Town 2] from [Year] to [Year] and [School 2] in [Location 1] from [Year] to May 2008. From July 2008, he attended school in Australia. He is a student. He travelled to Australia on his Indian passport.
[The first applicant], [the second applicant] and [Mr A] arrived in Australia [in] May 2008 and have not departed since.
Evidence before the Tribunal
The Tribunal has all the same evidence before it as the previous Tribunal, as well as additional evidence provided by [the first applicant] and [the second applicant] following the remittal from the FCCA. The evidence on the Departmental file and Tribunal files includes, but is not limited to, the following:
·The applicants’ protection visa applications of 12 December 2013 and the application and claims made by [Mr A], including his claims made in 2008;
·The delegate’s decision dated 17 April 2015, which was provided to the Tribunal in this case and the previous case;
·Report from [Hospital] indicating [Mr A] was brought there on 16 December 2007 at 7.00 pm as an emergency patient. It notes he had multiple blunt injuries with bruising almost all over his body. It notes he was beaten by some people as alleged by him. It notes he remained in hospital for two days from 16 December 2007 to 17 December 2007.
·Medical documents from 2010 and 2012 regarding [the second applicant] suffering from regular migraine headaches. It notes these migraine headaches are precipitated as he is anxious as to the family situation in Australia and how he will cope with his studies once sent back to India. He was prescribed anti-migraine medication. Medical reports from 2010 also note he has obsessive compulsive traits and behavioural intervention was recommended. There were also reports from his treating clinical psychologist who saw him on a number of occasions in 2011 as to worry management and tolerating migraines caused by worry about his and the family visa status.
·Documents from [the second applicant]’s school in Australia in 2010/11 showing absenteeism.
·School letter from 2011 indicating [the second applicant] was a gifted student and fully supporting his continued study.
·Written submission from [the second applicant] received 21 March 2018 in which he refers to the unfamiliarity of India to him as a person who has grown up in Australia and expresses concern about a youth culture in India of drug addiction and being in danger as a follower of Guru Baba Ram Rahim (the leader of Dera Sacha Sauda (DSS)).
·Independent country information submitted by [the second applicant] relating to a drug and alcohol abuse epidemic existing in Punjab and India, as well as a culture of violence and societal difficulties. The articles also refer to the high rate of unemployment in India among youth.
·Newspaper articles regarding the violence which occurred after the conviction of Gurmeet Ram Rahim of rape in August 2017.
·Untranslated Newspaper article from 2014, death Certificate of [Mr B] dated 19 March 2014 and photographs supposedly of this man with [Mr A]. The submission with these documents made by [the second applicant] received on 26 March 2018 notes that the person was a family member and colleague of [Mr A] when he was involved in satsang[4]. He notes the article indicates that [Mr B]’s death was suspicious, done in broad daylight on a busy road with no witnesses.
·Article titled “Akali Leader Bikram Singh Majithia under Fresh Scrutiny for alleged Role in Punjab Drug Racket”, The Wire, dated 25 March 2018.
·Post-hearing written submission of [Mr A] received 6 April 2018. In this submission, [Mr A] refers to the evidence given in the Tribunal hearing and reiterates why he fled India. He refers to his son being unfamiliar with Indian culture and that Punjab, Haryana and neighbouring states have a drug problem amongst the youth and so as a parent he fears for his son’s safety for these reasons, as well as being a follower of Guru Ram Rahim. He refers to the trauma suffered by his wife as a result of what happened to him and them having to flee their home. He also refers to the types of problems suffered by followers of Guru Ram Rahim, such as people being beaten and killed, why he is worried for his safety as a follower, and responds to some of the concerns raised by the previous Tribunal about his evidence.
·DFAT Country Information Report India, 10 December 2020 (‘DFAT Report’).
·Written statement of [the second applicant] received on 31 May 2023 attaching an article from BBC News dated 23 February 2023 discussing anger amongst some people in India over Gurmeet Ram Rahim Singh being released from prison on parole on more than one occasion. [The second applicant] submits that the anger and tension around this situation could impact negatively on his father and family given their association with Guru Ram Rahim.
·Written statement of [Ms C], daughter of [the first applicant] and [Mr A], dated 31 May 2023 explaining that she left India when she started receiving ominous messages in 2020 about the whereabouts of her father. She states that in light of past events and animosity towards her family, this led her to taking action to safeguard herself and her children by moving to [Country].
·Written statement of [the second applicant] provided at the hearing on 27 July 2023 in which he explains his strong connection to Australia, the challenges he would face if he had to return to India given he has grown up in Australia, why he wishes to remain in Australia, and that the prolonged uncertainty around his situation has affected his mental health.
·Written response from [the first applicant] and [the second applicant] dated 14 August 2023 to the Tribunal’s letter dated 1 August 2023 sent to them pursuant to s 424A, following the hearing on 27 July 2023.
·Curriculum vitae of [the second applicant].
·Letter dated 10 August 2023 from [D], Registered Psychologist, [Organisation, Suburb], explaining that [the second applicant] has been attending [Organisation] since early 2021 for cognitive behavioural therapy to assist him with symptoms of depression and anxiety relating to the uncertainty around his visa status and an ADHD Checklist in respect of [the second applicant].
[4] A satsang is an Indian word to describe a type of religious prayer gathering that involves listening to a guru. See, eg, >
The Tribunal has also considered a written transcript of the Tribunal hearing held on 26 March 2018 and a copy of the previous Tribunal’s decision dated 9 April 2018.
The Tribunal has thoroughly considered all the evidence and submissions before it and, where relevant, makes specific reference to it below.
[Mr A]’s claims for protection
[Mr A] is not an applicant in this case before the Tribunal but the claims of [the first applicant] and [the second applicant] are very closely connected to his claims. It therefore makes sense to set out [Mr A]’s claims so that the Tribunal’s discussion and consideration of the claims of [the first applicant] and [the second applicant] below have some context. As set out in paragraph 22 of the previous Tribunal’s decision, [Mr A]’s claims made since he first applied for protection can be summarised as follows:
·He is a disciple of Gurmeet Ram Rahim Singh and was a permanent worker of the Dera Sacha Sauda. He also supports the Congress party.
·He was harassed by members of the Shromoni Akali Dal (SAD).
·He regularly organised religious discussions or gatherings from 2004 at his house where attendees would discuss the philosophy of their Baba. Initially about 30 to 40 persons attended. He noted the main teachings of their Dera is to raise their self-character, lead a simple life, avoid taking any type of drugs, liquor or smoking and lead a vegetarian life. He notes the Dera preaches them to work hard and believe in universal brotherhood. He notes they oppose the dowry system.
·He claims he also used to three to four times a year visit Sirsa which is the headquarters to listen to the discourse of the Baba at these meetings.
·Total membership of his group grew from 4 families to a total of 380 families.
·He also used to celebrate at a big function and their local MLA, [Mr E] used to take part and address the participants.
·In November 2006 he was contacted by [Mr F] who is the main organiser of the local Gurudwara and advised that their Baba is not of good character, a liar and he should not follow him. He advised the applicant to stop his false propaganda otherwise there would be a problem. The applicant said he laughed and was told he would face the consequences.
·He claims he went on following his program and did not change and he told everything to the group.
·Members of the Akali Dal (SAD) party in Punjab approached the applicant in January 2007 and threatened him for creating false propaganda against their party. He named [Mr G] and [Mr H] as being in this group. He replied that he is a supporter of the Congress party and he put a Congress Party flag outside his house and openly supported the candidate, [Mr E].
·The leader of the Akali Dal, [Mr I] threatened the applicant over the phone and he told the applicant he would be in trouble if he came to power.
·During the election members of the Akali Dal demanded he give money to their party. He refused to pay and was again threatened.
·In the election his candidate won the local seat but the Akali Dal came to power as they won more seats.
·After the Akali Dal won the elections they became very aggressive and some formed a group who demanded money from shopkeepers like the applicant, who owned his own [shop]. He claims they came to his shop in March 2007 and he was asked for the papers of his shop and he was threatened to show them. He claims they broke glasses and threatened that they will close his shop. He was accused of selling illegal goods. He claims he heard them say he was a follower of Gurmeet Ram Rahim Singh and he sells him drugs.
·He went to the police but they did not write a report or visit him.
·An anonymous caller threatened to burn down the shop if he did not close it. The caller said their group was anti-Sikh and the Baba was a liar. He claims the caller said he will not tolerate anything against Sikhism. He was warned to stop his false propaganda. He claims he did not take these threats seriously but kept on working.
·In May 2007 he claims he was holding a normal gathering at his house when a group of 20 Akali Dal party workers entered the applicant’s house and denounced Baba Gurmeet Ram Rahim Singh. He claims his members became angry and an argument started. The SAD members damaged the applicant’s car and some motor bikes. He claims he told everyone to leave and they cancelled the next gathering.
·The applicant reported the incident to the police but the police accused him of holding an illegal gathering as there were more than 35 people.
·After two days he claims he met with his local member, [Mr E] and he said he would talk to the Deputy Commissioner of police.
·He claims he stopped holding gatherings at his place and started meeting at different places in small groups.
·In December 2007 he claims he was coming back from attending a meeting at [Location 2], a meeting organised by [Mr J], on his scooter. He claims when he reached [Location 3] he was attacked by assailants who were on motor cycles and they attacked him with an iron rod. He claims he fell down and they beat him with various types of arms. He claim he heard one of them saying kill him as he is preaching against their Gurus.
·He woke up at [Hospital] the next day and was told he had been picked up in a tractor. He was advised by his family members not to lodge a police report as they would only act against him.
·However, after four days he exported the matter to police. The police threatened him and did not act on it.
·He claims he could not open his shop for two weeks
·He reopened his shop and received three or four threatening letters, including threats to kidnap his son. He claims he became very scared.
·He claims he moved with his family to his in-laws house in Karnal.
·He claims if he returns he will be killed because of his political and religious thinking.
[The first applicant]’s claims for protection

[The first applicant]’s claims for protection were made in the previous Tribunal hearing on 26 March 2018 and in the current Tribunal hearings on 3 May 2023 and 27 July 2023. Her claims can be expressed as follows:
·     they came to Australia to escape [Mr A]’s problems and they have nothing in India now. They can’t go back because they have no source of income;
·     people threatened [the first applicant]’s daughter in India and [the first applicant] thinks it is their enemies in India who did this;
·     she fears the Akali Dal people who threatened them in the past because she and her husband followed DSS, will threaten them again;
·     she fears harm due to being a family member of [Mr A] because of [Mr A]’s profile;
·     she fears harm as a follower of DSS;
·     a truck hit and killed her sister’s husband and [the first applicant] thinks it is connected to her ([the first applicant]) and her family being followers of DSS.
[The second applicant]’s claims for protection
[The second applicant]’s claims for protection are made in written submissions, the previous Tribunal hearing on 26 March 2018 and in the current Tribunal hearings on 3 May 2023 and 27 July 2023. His claims can be expressed as follows:
·     he fears returning to India due to the youth drug culture;
·     he has lived in Australia for so long that India culture is alien to him and it would be difficult for him to adapt;
·     the prolonged uncertainty around his visa situation has given him mental health problems and relocating to India would jeopardise his mental well-being;
·     he fears harm as a follower of DSS;
·     he fears harm as a family member of [Mr A] because of [Mr A]’s profile, including how [Mr A] would follow DSS if he returned to India;
·     the same Akali Dal people who harassed his family in the past in India started to harass his sister in 2022 and ask about [Mr A]’s whereabouts.
The hearing
The applicants appeared before the Tribunal on 3 May 2023 and again on 27 July 2023 in a resumed hearing to give evidence and present arguments. In the hearing on 27 July 2023, the Tribunal also received oral evidence from [Mr A] and [Ms C] as witnesses. [Ms C] lives in [Country] with her [children] and gave evidence by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. [The second applicant] and [Ms C] did not require the assistance of the interpreter as they both speak fluent English. [The second applicant] confirmed that he speaks English, Hindi and Punjabi.
Nationality
The applicants claim to be citizens of India. They have provided evidence of their identity and citizenship to the Department, including copies of the bio-data pages of their Indian passports. The delegate accepted this and found they were citizens of India. In the absence of evidence to the contrary, the Tribunal accepts this and finds that India is their receiving country for the purpose of assessing their claims for protection.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
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.
Analysis, reasons and findings
The issue in this case is whether [the first applicant] and [the second applicant] meet the refugee criterion under s 36(2)(a) and are therefore persons in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
In the Tribunal hearing, the Tribunal discussed with the applicants their family and personal background, relatives in Australia and India and elsewhere, employment history, living arrangements in India and Australia, migration history, religious beliefs and practices, health situation, what happened in India and why they fear returning there. Overall, the Tribunal found the applicants to be credible witnesses, although it found some of their claims and evidence to be speculative, not well-informed and not supported by country information or other potentially corroborative evidence.
In the Tribunal hearing, the Tribunal indicated to the applicants that it accepted the findings of the previous Tribunal, as set out in the previous Tribunal’s decision record, that they were followers of DSS in India, that they continue to follow DSS in Australia, that they will continue to follow DSS if they return to India, that they were affected by incidents of intimidation and harm before their departure from India in 2008 as claimed in [Mr A]’s original protection visa application in 2008, that [Mr A] engaged in the activities he claimed in India relating to organising DSS gatherings and promoting DSS, and that [Mr A] was well known in his local area at the time of their departure from India for his support of DSS.
Threats to the applicants since leaving India
The applicants claim that the people who threatened and harassed them and [Mr A] before they left India are still interested in them and have recently made threats against them through [Ms C].
In the Tribunal hearing, [the first applicant] gave evidence that In India she had lived in [Town 2] since she married [Mr A] in [Year]. She, [Mr A] and [the second applicant] relocated to Karnal a couple of months before they left India. They were hiding there from the people who had been harassing them in [Town 2]. Karnal is a city in Haryana state and it is where [the first applicant]’s parents lived. From Karnal, they departed India for Australia by air from New Delhi.
[The first applicant] gave evidence that she has a daughter, [Ms C], who is around [Number] years older than [the second applicant]. Her daughter, who is married with [children], moved to [Country] early in 2023. Her daughter got married in [Year]. Before marrying, her daughter lived with the family in [Town 2]. She married a man from [Town 2], so after marrying she continued to live in [Town 2] with her new in-laws. After she married, [the first applicant]’s and [Mr A]’s relationship with their daughter was normal. At the time [the first applicant] and [Mr A] moved to Karnal and then left India, their daughter remained in [Town 2] with her husband and in-laws. She had a young baby at the time.
The Tribunal asked [the first applicant] whether, at the time she ([the first applicant]) left India in 2008, her daughter was having any problems connected to [Mr A]’s problems. [The first applicant] responded that the problem for her daughter was just starting because her son was growing up and she started to get phone calls. The Tribunal asked her when the problems started and [the first applicant] responded that her daughter didn’t tell them in detail. The Tribunal asked again whether the daughter was having problems back in 2008 at the time [the first applicant] left [Town 2] and India. [The first applicant] responded that at the time, no one was really aware that her daughter is married and she was there (in [Town 2]). The Tribunal asked why people weren’t aware of her daughter and [the first applicant] responded that initially, her daughter didn’t get any calls but maybe afterwards someone must have told them her daughter lives there and they started giving her a hard time. The Tribunal put to [the first applicant] that it might find it hard to accept this explanation. The Tribunal also considers [the first applicant]’s responses to the questions about any problems her daughter was experiencing back in 2008 to be evasive. The Tribunal asked [the first applicant] whether her daughter ever talked about coming with them to Australia when they left in 2008. [The first applicant] responded that she did not, and her daughter had only been married for a short time at that point. The Tribunal put to her that this might suggest her daughter was not afraid at that time. [The first applicant] responded that she thinks at the time her daughter probably wasn’t afraid, but she can’t really comment.
In the Tribunal hearing, [the second applicant] gave evidence that he could not remember much about the problems he and his parents had while living in India as he was young. He remembered that his sister got married when she was about [Age] years old. She lived at home before marrying and then she went to live with her husband and his family in [Town 2], two streets away. [The second applicant] and his parents continued to have regular contact with her after she married. She was living at home with her husband and his family at the time [the second applicant] and his parents left [Town 2]. He doesn’t think his sister experienced any of the problems that [Mr A] experienced in 2008 before leaving India.
Based on the evidence of [the first applicant] and [the second applicant], the Tribunal finds that at the time [the first applicant] and [the second applicant] left [Town 2] and relocated to Karnal and then to Australia, [the first applicant]’s daughter was not experiencing problems connected to the problems experienced by [Mr A].
In relation to the threatening phone calls to [Ms C], as set out above, [the first applicant] and [the second applicant] claim that these calls were connected to the problems [Mr A] (and by association, [the first applicant] and [the second applicant]) were having prior to leaving India in 2008 and show that the people who caused harm back then are still interested in them and would harm them they returned to India.
In relation to the threatening phone calls to her daughter, [the first applicant] gave evidence that she did not know when the calls started because initially, her daughter did not tell her because she didn’t want to worry her parents. When asked why her daughter moved to [Country], [the first applicant] said that her daughter was receiving threatening phone calls saying what we will do with your brother, we will do to your son, and she got scared.[5] Her daughter has a student visa for [Country]. [The first applicant] found out about the phone calls when her daughter told her, but she doesn’t remember when. The Tribunal reminded [the first applicant] that in her daughter’s written statement, she says it was in 2022. [The first applicant] said her daughter told [Mr A] she was receiving the calls from a private number, she didn’t know who the calls were from, and she was scared. As far as [the first applicant] knows, the threats were mainly phone calls. The Tribunal put to [the first applicant] that it had a doubt about why in 2022, when [the first applicant], her husband and son left India in 2008, people would start making threatening calls to her daughter in connection with [Mr A] when her daughter had been living in India that entire time. [The first applicant] responded that her daughter suddenly started getting these calls, it was not easy for her daughter to leave her family behind in a rush and she did not need to leave home if this had not happened.
[5] The Tribunal understands this to be a reference to the claim that before leaving India in 2008, the people harassing [Mr A] had threatened to kidnap [the second applicant], and now similar threats were being made to [the first applicant] about kidnapping her son. This is consistent with the evidence of [the second applicant] and [Mr A].
In the Tribunal hearing, [the second applicant] gave evidence in relation to the problems faced by his sister that she was being harassed and threatened because of her association with [Mr A]. She was receiving calls and messages and she didn’t want to leave the house because she was worried. She told her parents and brother in mid-2022 because she wanted to shield them from it for as long as possible. She told them that Akali Dal members were starting to harass her and asking about [Mr A]’s whereabouts and said they would kidnap one of her children. She thought all those problems had passed. She did not know who was making the threats and [the second applicant] was not sure what kind of threats she was receiving. The Tribunal asked him why this would only start to happen in 2022 when he and his parents left India in 2008 and his sister had been living there the whole time. He said he had no clue.
The Tribunal also asked [Mr A] about the threatening phone calls to his daughter and how he found out about it. He said she was receiving messages earlier but she only told them in 2022. She didn’t want to tell them earlier because she knew they were already depressed. Then in 2022 she did her IELTS test[6] and left India. She told [Mr A] the messages were threatening to kidnap her son in the same way they had threatened to kidnap [Mr A]’s son ([the second applicant]). She did not know who the messages were coming from because they were from an anonymous number but [Mr A] said it was the same Akali Dal party people who were threatening him ([Mr A]) before he left India. The Tribunal asked [Mr A] why people would want to threaten his daughter in 2022 or 2023 when he had not been in India or had any involvement there since 2008. He responded that his daughter was getting threats but she didn’t want to tell them (her parents) and she was not prepared for anything.
[6] IELTS (International English Language Testing System) is an English language proficiency test. See
The Tribunal heard evidence from [Ms C]. The Tribunal found her to be an honest and straightforward witness who did not embellish her evidence. [Ms C] gave oral evidence to the Tribunal that since January 2023, she has been living in [Country] with her [children] aged [Ages]. She holds a student visa and is studying a Masters in [Subject 1] at [University]. She married in [Year]. Her husband is still in [Town 2], India. He is a shopkeeper of a [store]. Until moving to [Country], she has always lived in [Town 2], first with her family and then with her husband’s family. Before marrying, she used to participate in DSS activities with her father, but after marriage her in-laws follow another guru and she is a neutral person. She believes in a god and karma, but she doesn’t follow a particular group. She was not affected by the events that happened before her family left India, but as a result of those events her father was not in a good state of mind.
The Tribunal asked her whether she had experienced any problems since her parents and brother departed India related to the events of 2008. [Ms C] gave evidence that in early 2022, she started getting random calls from a private telephone number saying things like “where is your son, is he at home?”. Her son also told her that someone had asked him about [Mr A]. At first, she thought it was a joke and just a strange coincidence that someone had asked about her father. It got serious when she started receiving messages. Someone dropped a letter with no address through the door of her house and she received text messages from a random number. The messages said things like “where is your father ([Mr A]), tell him to come here or we will kill your son”, and threats saying they would kill her and her son. [Ms C] said that the messages were. She received frequent letters and text messages in June 2022.
The Tribunal asked [Ms C] whether she reported the messages to the police. She said she did not, and she said she suspected her husband was involved in sending the messages. She said he is a greedy man and she thought he might be involved because of money. She said he kept asking her where her father was, and she asked him why he was interested. Her husband didn’t want her to report the messages to the police. At this time, her husband was spending time with one of his cousins who was taking him out and getting him drunk and [Ms C] had a “vibe” that he was involved in what was going on. Once she told her husband what was happening with the messages things got worse. He didn’t support her with her worries. She was scared for herself and her children, and her children were worried too. She didn’t want her children to go outside and they were all distressed. These worries escalated to the point where her children needed to see a child psychiatrist at the hospital, but her husband wasn’t interested in their fears and he didn’t support [the first applicant] or the children, emotionally or otherwise, at all.
[The first applicant] said that she thinks the messages were created by her husband and his cousin. His cousin knows or is related to one of the people who was involved with threatening [Mr A] in India in the past. She holds the cousin responsible for destroying her family life and harming her. The Tribunal put to [Ms C] that based on what she had said, it sounded as though she was saying that the messages were about her father but they were directed at her as part of a nasty campaign by her husband and cousin. She agreed with this and said that when she told her father ([Mr A]), he tried to convince her that her husband was not involved and not to spoil her marriage, but she knows her husband was involved and she was frightened.
[The first applicant] said that she has separated from her husband because he didn’t support her at all while these things were going on and she intimated that this was part of a longer-standing problem between them. She moved to [Country] without her husband as soon as she got her student visa and the threats have stopped. She has changed all her contact details.
Insofar as the evidence in [Ms B]’s written statement differs from her oral evidence, the Tribunal prefers her oral evidence which was given spontaneously and without hesitation in the Tribunal hearing in response to the Tribunal’s questions.
In the hearing, the Tribunal explained to the applicants that it had some concerns about their claims relating to the threatening messages and it might find that the evidence from [Ms C] indicates that what happened was part of an issue between her and her husband and his cousin, and does not indicate that the people who harmed [Mr A] in the past are still interested in him now or that they were responsible for the messages. The Tribunal also indicated that it had some particular concerns about aspects of the evidence given by [Mr A] and [Ms C] about the threatening messages which it needed to put to the applicants. The Tribunal explained that it would write to the applicants about this in more detail after the hearing and give them the opportunity to respond in writing. The Tribunal wrote to the applicants under the s 424A process and set out its concerns. Relevantly, the letter states:
The evidence of [Ms C]
The particulars of the information are:
·In her written statement dated 31 May 2023, [Ms C] stated that in 2022, she began receiving ominous messages regarding the whereabouts of her father ([Mr A]) and that understanding the ongoing tension and animosity towards the family in India because of the events that led to [Mr A] and you (his wife and son) leaving India in 2008, she decided to relocate to [Country] with her children for their safety.
·In the Tribunal hearing on 27 July 2023, [Ms C] gave evidence that was slightly different from what she said in her written statement. [Ms C] gave evidence that in early 2022, she started receiving calls from a private number asking about the whereabouts of her son. Her son told her that someone had asked him about the whereabouts of his grandfather ([Mr A]). Then she started receiving anonymous written messages at her house and text messages from a random number which contained threats along the lines of asking where [Mr A] was and saying if he did not return they would kill [Ms C]’s son and/or [Ms C].
·[Ms C] gave evidence that she thinks the messages were sent by her husband and his cousin. The reasons she came to suspect this include because her husband didn’t want her to report the messages to the police, the situation got worse once she involved her husband, he did not support her or her children when they were experiencing distress because of the messages, her husband is a greedy man who wanted money and he kept asking her where her father was, her husband’s cousin is a friend or knows one of the people who threatened [Mr A] in the past, and the cousin is a bad influence who was taking her husband out and getting him drunk which contributed to the breakup of her family. She said she knows her husband was involved in sending the messages and she was frightened. Since relocating to [Country] and leaving her husband behind in India, [Ms C] has changed all her contact details and has not received any further messages.
·Also, in the Tribunal hearing on 27 July 2023, [Ms C] gave evidence that since you departed India in 2008, she has remained living in [Town 2] which is where she has always lived. This is the same town where you lived in India and where the events in question occurred that led to your departure in 2008. [Ms C] gave evidence that she has never experienced threats or harm from the people who threatened and harmed [Mr A] (up until she received the threatening messages in 2022 as referred to above).
This information is relevant because you claim that the threats received by [Ms C] support your claim that the people who harmed and threatened you in the past are still interested in you and would harm you if you returned to India.
If the Tribunal relies in this information, it might find that the threatening messages were sent to [Ms C] by her husband and his cousin as part of problems she and her husband were having in their marriage. The Tribunal might find that the messages were not a renewal or continuation of the threats made in the past to [Mr A] and you before you left India in 2008. The Tribunal’s view might be strengthened by the fact that [Ms C] has remained living in [Town 2] after you left India and did not experience any problems until the anonymous messages.
This may lead the Tribunal to find that you would not face a real chance of serious harm if you returned to India in the reasonably foreseeable future as a result of the anonymous threatening messages received by [Ms C] in 2022, or as family members of [Mr A], and therefore you do not have a well-founded fear of persecution for this reason.
If the Tribunal does not accept your claims, you may not be entitled to a protection visa

In their written response provided on 14 August 2023, the applicants state as follows:
2. The Source of the Threatening Messages to [Ms C]
It's important to highlight that the marriage between [Ms C] and her husband was unproblematic until the emergence of these threats. This contradicts the notion that the threats were a byproduct of marital discord, especially considering that the issues between [Ms C] and her husband surfaced only after the threatening messages were received.
The tension in [Ms. C] 's marriage has skewed her view on what was happening. There is no clear motive for the husband to orchestrate such threats about [Mr. A] 's whereabouts. [Mr. A]’s current situation and location have no connection to the husband's personal matters.
In India, grudges tend to endure over time. The cousin's association with [Mr F], the individual connected to the threats and physical harm suffered by [Mr. A] in the past, raises significant questions. [Mr F]’s involvement is indicative that the issue did not arise simply from problems in the marriage. The clear motive was to indirectly coerce [Mr. A] into returning to India.
The assertion that [Ms. C] remained living in [Town 2] without issues until the anonymous messages surfaced is a perspective that warrants deeper examination.
We do not know why there was a sudden escalation involving family members and the targeted approach through his daughter and grandchildren.
What is important is the serious nature of these threats and their potential impact on [Ms. C] 's sense of safety and well-being.
The suggestion that these threats were a way to reach [Mr. A] holds weight, especially given the grudges and historical threats associated with him. This aligns with the pattern of past events and points to a concerted effort to exploit vulnerabilities through family members.
In conclusion, the historical context, connections to past threats, and the calculated approach used through family members provide substantial evidence that these threats are more than incidental. Considering these aspects, the potential for serious harm upon our return to India remains a significant concern.
The Tribunal has considered all the applicants’ evidence about this claim relating to who made the threats to [Ms C] and why, including their response to the s 424A letter, but does not accept it. In so far as there are discrepancies between the evidence of the applicants, [Mr A] and [Ms C], the Tribunal prefers the evidence of [Ms C] about the situation with the threatening messages and who she thinks was behind them and why, given she is the person with first-hand knowledge of what was happening and the Tribunal found her to be a credible witness. In particular, the Tribunal considers that the applicants’ written response attempts to re-cast aspects of [Ms C]’s own evidence in a manner that supports their claim to be of ongoing interest to the people who harmed [Mr A] in the past and the Tribunal does not accept this. Further, as put to the applicants in the hearing, the Tribunal finds it hard to believe that 14 years after they left India, when [Ms C] had been living in [Town 2] all that time without problems, that in 2022 the people who targeted [Mr A] in 2008 would start to target him again through her. The applicants and [Mr A] have not provided a plausible explanation for why this would be the case. On the other hand, the Tribunal considers that [Ms C] has provided a plausible explanation for what was going on with the threatening messages and her evidence is that it was not related to [Mr A], other than her husband and cousin using her memory of those past events to pressure and scare her.
The applicants have also given evidence that they have not received any threats since being in Australia. [The first applicant] said that they have been told by friends and relatives that the people who harmed them in the past are still waiting for them. She could not remember when she was told this, but said “initially” they were told that. The Tribunal finds her responses about this to be vague and does not accept them. In response to the Tribunal asking her why these people would still be interested after so long, she responded that if they get into the same problem and their life is in danger, who is there to guarantee their life. The Tribunal has considered her response but does not accept it as it does not respond to the Tribunal’s question.
For the reasons explained above, the Tribunal finds that the threatening messages sent to [Ms C] in 2022 and 2023 were part of a marital or other private issue between her and her husband. The Tribunal finds that the messages were not a reprisal of the problems faced by the applicants and [Mr A] before they left India in 2008 and were not connected to those events. The Tribunal does not accept that the threatening messages were sent to [Ms C] by the same people, connected to Akali Dal or otherwise, who threatened and harmed the applicants and [Mr A] before they left India in 2008. The Tribunal finds that the applicants have not received any threats since coming to Australia. In light of the Tribunal’s findings and the passage of time, the Tribunal does not accept that the people who threatened the applicants via their actions towards [Mr A] in India in the past are still interested in, or involved in, threatening or harming the applicants now or that they would be in the future.
The applicants as followers of DSS
By way of background, the DFAT Report explains that DSS is a sect that was founded in 1948 as a social welfare and spiritual organisation. Media have referred to it as a “religious cult”. It has 50 ashrams across India, with its main centre in the northern Indian city of Sirsa, Haryana. It has historically played an influential role in elections due to its large support base across society, openly backing candidates or parties. In 2017, the current leader, Guru Ram Rahim, was sentenced to 20 years’ prison for the 2002 rape of two female followers. This led to protests by his followers resulting in the death of at least 38 people in Haryana. In January 2019, he was sentenced to life imprisonment for the 2022 murder of a journalist. He is also standing trial for two other murders and is the subject of other investigations.[7]
[7] DFAT Report 3.73 – 3.76.
In the Tribunal hearing, the Tribunal discussed with [the first applicant] how she follows DSS in Australia. The Tribunal asked her whether she still follows DSS in Australia. She said they still follow him (Guru Ram Rahim) but they don’t do public praying or anything like that. They pray at home and have all the things set up at home to follow him. The Tribunal reminded [the first applicant] that she told the previous Tribunal in 2018 that she practices quietly at home and she is not involved with any DSS organisations in Australia, and asked her whether that was still correct. She said it was. The Tribunal asked her why she just practices at home. She said they pray at home, there is no need to advertise what they do, everyone prays the way they want to and they pray at home and follow “him”. The Tribunal asked her whether she would continue to follow DSS if she returned to India. She said she would but they cannot return to India. The Tribunal asked her what she would do. She said people don’t agree with their leader and think he is saying wrong things. She said we (meaning her and her family) are just common people and they won’t spare us either. The Tribunal asked her whether she had anything else to say about how she would express her following of DSS in India. [The first applicant] responded that they have no choice, they have to follow him, it is not easy to leave their religious leader but the people won’t let them do it and it creates rivals. The Tribunal put to [the first applicant] that it might find that if she returned to India she would follow DSS in India in the same or similar way as she has done in Australia. She responded that people over there know they are followers of DSS because their shop was taken over by Akali Dal people and they have nothing to return to.
In the Tribunal hearing, the Tribunal discussed with [the second applicant] how he follows DSS in Australia. He gave evidence that his family still follows DSS in Australia but they can’t really find a place to go and do it. He said he meditates and listens to satsang online. The Tribunal asked him whether there was anything else and he said there were no particular rituals but it teaches people to be good, to meditate and to refrain from bad habits. The Tribunal asked him whether there were any particular reasons that he practises in that way in Australia and he responded it is what he is comfortable with. [The second applicant] gave evidence that he would continue to follow DSS if he returned to India. When asked what he would do, he said that in India, they used to go to satsangs. Sometimes there were lots of people. His father was well-known and respected. He had his own opinions on politics and if he were to go back he would do those things. The Tribunal reiterated its question and asked [the second applicant] what he personally would do. He said he would be a follower and go to satsangs. The Tribunal clarified with him that he meant he would be an ordinary follower and go to satsangs and he said he would.
[Mr A] gave oral evidence as a witness in the hearing about his practice of DSS in Australia. The Tribunal reminded him that he told the previous Tribunal in 2018 that since arriving in Australia, he had followed DSS by praying and following the teachings at home with his family, and that the previous Tribunal member accepted this. The Tribunal asked [Mr A] whether this was still the case or if things had changed. He said it was still the same. The Tribunal asked him what he believes as a follower of DSS and he said it was to earn your income the right way, be a nice person in the way you live, help poor people, donate blood and pray or meditate at home for your Lord. The Tribunal asked [Mr A] whether, if he returned to India, he would continue to follow DSS. He said they would follow it (meaning his family) but they (meaning his enemies) won’t allow us to survive or live there. The Tribunal asked him how he would follow it and what he would do. [Mr A] responded that they can’t return home because their life is in danger there. The Tribunal asked him once again and he said they could only follow the Guru here and he is scared to return and follow him in India.
In the Tribunal hearing, the Tribunal discussed country information with the applicants about the current situation for DSS in India. As discussed, the current DFAT Report refers to the leader of DSS being imprisoned for various convictions of murder and rape. The Report says that with the leader in jail, DSS is losing influence and its future is uncertain. The number of followers has reduced and its political influence has waned since Guru Ram Rahim’s conviction. DFAT says it is not aware of any major incidents of violence specifically targeting followers of DSS in India.[8] There are reports of isolated attacks on DSS followers since 2015,[9] but it appears that these attacks are connected to specific sacrilege incidents and not random. The Tribunal noted that based on the evidence before it, the applicants had not been involved in sacrilege incidents in the past and it might find they would not be in the future.
[8] DFAT Report 3.79
[9] ; (accessed 12 September 2023)
The Tribunal referred to the article the applicants provided about the DSS leader being released on parole and some people being angry about that, which is attached to [the second applicant]’s letter received on 31 May 2023.[10] The Tribunal noted that the article does not suggest that ordinary DSS followers are being threatened or harmed as a result of this. The article reports that in March 2023, Guru Ram Rahim was returned to prison. That same article says that in recent years Guru Ram Rahim has supported the BJP. More recent articles from March 2023 from the Times of India and The Tribune say that the Dera has dissolved its political committee and it will now be focussing on social activities.[11] The Tribunal explained that this suggested that the DSS’s lack of involvement in politics will mean that its leader and followers are even less likely to be of interest to others because followers will be focussed on social work and not politics. The Tribunal noted a report about Sikh activist protesters trying to block a group of DSS followers from attending a Dera event in Punjab in early 2023. According to reports in The Tribune and other news sources, the police detained the protesters and protected the DSS supporters at the Dera they were attending. The reports did not mention any DSS supporters being injured.[12] The Tribunal put to the applicants that this suggests the police take protection of DSS supporters seriously. The Tribunal put to the applicants that the country information might lead it to find that as ordinary supporters of the DSS in India, they would not face a real chance of serious harm. It also put to them that it considered the country information they have provided previously to be out of date and therefore no longer relevant.
[10] (accessed 12 September 2023)
[11] (accessed 12 September 2023)
[12] (accessed 12 September 2023)
[The first applicant] did not respond directly to this. She said that people confiscated their shop and took everything and they have nowhere to go back to. She doesn’t know what they will do if they have to return to India.
[The second applicant] responded that [Mr A] was not an ordinary supporter of DSS. He said that his father hosted satsangs and not everything that happens makes the news, like what happened in [Town 2]. He said that because the Guru is in jail, people do not like his followers. The Guru is coming out again and people are not happy. He said that the attacks on [Mr A] were not random and Sikh people do not like DSS followers. [The second applicant] said that if they return to India, his father and mother will do the same thing as before in terms of following DSS. He said people don’t like them there.
In the hearing, the Tribunal put to the applicants that based on their evidence about their practice of DSS in Australia and how they would practice if they returned to India, it might find they would practice as ordinary followers and not as high-profile followers or activists. It might find that although they would be known as DSS followers back in India, the country information indicates that they would not face a real chance of serious harm. [The second applicant] responded that his parents would follow DSS like they did before. He said they could not talk to people about it in Australia because of language barriers and things like that but they would not have those barriers in India.
In the hearing, the Tribunal put to the applicants that based on [Mr A]’s evidence about his beliefs and practices of DSS in Australia, it might find he would not be involved in organising the types of activities he used to in India and that he would be an ordinary follower too, and as a result, the applicants would not face a real chance of serious harm due to [Mr A]’s activities. [The first applicant] responded by asking the Tribunal to consider whether as a mother someone would like to take their son to a place where his life is in danger. [The second applicant] responded that his father would not be a normal follower because of his ties and he will go back to doing what he did before.
The Tribunal put to them that it had considered their evidence about how they practice in Australia and there are DSS organisations in Australia which they could have become involved with if they had wanted to. [The second applicant] responded that they didn’t know about DSS here. The Tribunal noted that it might not accept his response because a very simple internet search provides DSS contact details in Australia.[13]
[13] Typing “dera sacha sauda australia” into the Google search engine brings up as the first hit the DSS website for Australia which includes contact details for the organisation in Australia and information about its activities. See
Following the Tribunal hearing, the Tribunal wrote to the applicants pursuant to s 424A about concerns with [Mr A]’s evidence relating to his practice of DSS. Relevantly, the letter states as follows:
The evidence of [Mr A]
The particulars of the information are:
·In the Tribunal hearing on 27 July 2023, Mr [A] gave evidence about how he follows the Dera Sacha Sauda organisation (DSS) in Australia. His evidence was consistent with the evidence he gave in the previous Tribunal hearing on 26 March 2018 and with the previous Tribunal’s findings in its decision dated 9 April 2018. This is, that since being in Australia [Mr A] has followed DSS by praying and following DSS teachings at home with his family (you) and this is what he continues to do today. [Mr A] also gave evidence in the Tribunal hearing on 27 July 2023 that as a follower of DSS, he believes that a person should earn their income in the right way, be a nice person, help poor people, donate blood and pray or meditate at home. He gave evidence that if he returns to India, he will continue to follow DSS but his enemies won’t allow him to survive or live there. When asked how he would follow DSS if he returned to India, he said that we (meaning himself and you) cannot return home because our life is in danger there. When asked again, he responded that we (meaning himself and you) can only follow DSS in Australia and he is scared to return and follow DSS in India.
This information is relevant because you claim that if you return to India, you will be harmed by the same people who harmed you in the past due to [Mr A]’s connection to and activities with DSS. [The second applicant] claimed in the Tribunal hearing that if his parents return to India, they will follow DSS like they did in the past by hosting Satsangs and this will put all of you in danger.
If the Tribunal relies on this information from [Mr A], it may lead the Tribunal to find that since coming to Australia in 2008, [Mr A] has followed DSS by praying and following DSS teachings at home with you, his family. It may also lead the Tribunal to find that if he returned to India in the reasonably foreseeable future, [Mr A] would continue to follow DSS but as an ordinary member and in a similar way to that which he has done in Australia, and that he would not involve himself in organising the types of activities in support of DSS that he did in the past in India.
This may lead the Tribunal to find that as the wife and son of [Mr A], you would not face a real chance of serious harm if you returned to India in the reasonably foreseeable future as a result of [Mr A] being a follower of DSS and therefore you do not have a well-founded fear of persecution for this reason.
If the Tribunal does not accept your claims, you may not be entitled to a protection visa.
On 14 August 2023, the applicants responded in writing as follows:
1. [Mr. A]’s Likely conduct in India.
The contention that [Mr. A] 's future involvement in India would mirror his Australian engagement overlooks the nuanced factors that contribute to his role and influence in DSS in India.
His deep-rooted engagement in India over multiple decades has resulted in a strong network and an extensive community presence.
In essence, the depth of his engagement, the extensive time he spent cultivating connections, and the nature of his previous activities mean that his comfort level and familiarity with conducting Satsang's and organizing events in India is distinct from his relatively short stay in Sydney, spanning around five years.
The contrast in the duration of his residency and the time he has invested in building relationships and organizing activities should not be overlooked.
Considering the unique cultural and social dynamics, his activities in support of DSS in India will likely differ in scale and scope compared to those in Australia.

The Tribunal has considered the applicants’ response but based on the evidence before it does not accept it. The Tribunal has accepted that [Mr A] was involved with DSS in India in the way he and the applicants claim. The Tribunal also accepts the evidence given by [Mr A] about what he believes and the way he has followed DSS since arriving in Australia in 2008, some 15 years ago, which is that he has followed it quietly and privately at home. In the Tribunal’s view, if [Mr A] had wanted to become more openly and actively involved with DSS in Australia, as he was in India, then he had the opportunity to do that given the presence of DSS organisations in Australia, but he has not done so. For the reasons explained above, the Tribunal does not accept [the second applicant]’s explanation that the family has not become more involved with DSS in Australia because they did not know about it. The Tribunal does not accept [the second applicant]’s suggestion that [Mr A] and [the first applicant] have not become more involved with DSS in Australia due to language barriers, as this was not supported by his parents’ own evidence. Nor have they claimed, and the Tribunal does not accept, that the nature of their practice in Australia is constrained due to fear. Based on the evidence before it, the Tribunal finds the applicants (and [Mr A]) are following DSS in Australia in the manner of their choosing and that for the last 15 years in Australia this has involved them following DSS quietly and privately at home.
[Mr A] did not directly respond to the Tribunal’s questions about how he would follow DSS if he returned to India. The Tribunal has considered [the second applicant]’s oral evidence about how he says his parents (including [Mr A]) would follow DSS if they returned to India, but given it is not supported by his parents’ own evidence, it gives his evidence on this matter little weight. The Tribunal also finds that [the second applicant]’s evidence about how followers of DSS are viewed and treated in India is not supported by current country information and does not accept it. In the applicants’ response to the s 424A letter, they claim that [Mr A] is likely to become more involved with DSS if he returns to India due to his past involvement and connections. Based on the Tribunal’s findings about [Mr A]’s practice of DSS in Australia, the country information discussed above and considering the amount of time that has passed since [Mr A] left India and was involved with DSS in that country, the Tribunal finds that if [Mr A] returned to India in the reasonably foreseeable future he would continue to follow DSS as an ordinary follower like he has been in Australia for the last 15 years. The Tribunal considers that he would not return to being an organiser of satsangs or promoting DSS in the manner that he did before leaving India in 2008 and this would not be due to fear but rather, because the way he follows DSS has changed.
As for the practice of [the first applicant] and [the second applicant] in Australia, the Tribunal accepts their evidence about how they follow DSS in Australia and finds, based on the evidence before it, that this is their free personal choice and not due to fear. Based on this and on the evidence of the applicants about how they would follow DSS if they returned to India, the Tribunal finds that they would be ordinary followers of DSS in India, they would not be activists and they would not be involved in acts of sacrilege. Based on the country information referred to above, the Tribunal finds that ordinary followers of DSS in India do not face a real chance of harm or serious harm due to their activities.
The death of [the first applicant]’s brother in law
In the Tribunal hearing, [the first applicant] claimed that a truck hit and killed her sister’s husband (her brother-in-law). She mentioned this in the context of being asked about the reasons she fears returning to India. She said her brother-in-law used to visit them and she suspects that is the reason he was killed, alluding to their connection to DSS. This happened after [the first applicant] and her family left India. The truck disappeared. The Tribunal asked her whether she had any evidence to support her claim. She said they have submitted an article about it and her sister is living proof of what happened. The Tribunal indicated it may have doubts about the connection between [the first applicant] and her family’s following of DSS and the death of her brother in law.
In the Tribunal hearing, [the second applicant] claimed that his mother’s sister’s husband was killed by a truck. He is worried about his family’s safety. He said when his grandfather got sick, [the first applicant] wanted to go and visit but his grandmother told her not to come because it wasn’t safe. He said there was a suspicion that the death of his mother’s sister’s husband was deliberate. The Tribunal put to him that there didn’t appear to be any evidence to support that claim. [The second applicant] responded that his mother’s sister’s husband was a follower of DSS.
The Tribunal has considered the article referred to by [the first applicant], which was provided to the previous Tribunal. The article appears to be on the front page of a newspaper which is untranslated and dated 20 [month untranslated] 2014. The Tribunal put to the applicants that it might give the article no weight given it is untranslated. The Tribunal acknowledges the death certificate of [the first applicant]’s brother in law but it does not shed light on whether his death was intentional.
Based on the evidence before it, the Tribunal is not satisfied that [the first applicant]’s brother-in-law was deliberately killed by being hit by a truck due to being a follower of DSS, or due to [the first applicant] and her family being followers of DSS. The Tribunal is prepared to accept that [the first applicant]’s mother told her not to come and visit after [the first applicant]’s father passed away because it was not safe, but that does not change the Tribunal’s finding about the death of [the first applicant]’s brother-in-law or mean the Tribunal accepts that it was in fact unsafe for [the first applicant] to visit her relatives in India just because her mother said so.
[Mr A]’s support of the Indian Congress Party
The applicants claim that they fear harm due to being family members of [Mr A] because of his profile. In addition to his involvement with DSS, [Mr A] claimed to be a supporter of the Congress party in India.[14] The Tribunal asked [Mr A] about this in the hearing. [Mr A] gave evidence that in India, he used to follow the Congress party and they had a flag in the front of their house and that is why the Akali Dal people gave him and his family a hard time. He said that since coming to Australia he has not participated in any political activities. He said they (he and his family) just have to manage their lives and forget what happened in the past. The Tribunal asked [Mr A] whether he still supported a political party in India and he said Congress. The Tribunal asked him whether he would involve himself in politics if he returned to India. [Mr A] responded that they cannot return, they would support Congress if they went back but they cannot go back. The Tribunal accepts [Mr A]’s evidence about how he used to support the Congress party and finds that if he returned to India, he would continue to support the Congress party as a voter but not as an activist.
[14] The Bharatiya Janata Party (BJP) and the National Congress party (Congress) are the two largest national political parties in India. See DFAT Report.
In the hearing, the Tribunal discussed with the applicants [Mr A]’s claim to be a supporter of the Congress party. The Tribunal referred to the DFAT Report which indicates that people in India can participate in politics and express their political views freely. DFAT assesses that leaders and member of opposition parties do not face official or societal discrimination on a day to day basis. DFAT assesses that the risk of political violence increases around election time but given the scale of elections, they are conducted peacefully.[15]
[15] DFAT Report 3.91.
The Tribunal also discussed with the applicants the shift in DSS’s political involvement since they were in India. The Tribunal explained that media articles from various online sources show that in 2007, when the applicants were still in India, DSS supported the Congress Party in Punjab and Shiromani Akali Dal was the main rival political party.[16] Most recently DSS supported the BJP.[17] Now in Punjab, the Aadmi Party is the party of government by a considerable margin since the 2022 elections.[18] Congress, BJP and Shiromani Akali Dal only hold a few seats each in the Punjab Assembly and Shiromani Akali Dal is facing difficulties.[19] This suggests that any political influence [Mr A] might still be perceived as having as a follower of DSS and a supporter of the Congress Party would not be nearly as significant as it was in the past given the changed political landscape. Further, the Tribunal notes that as discussed above, articles from March 2023 from the Times of India and The Tribune say that DSS has dissolved its political committee and it will now be focussing on social activities,[20] which suggests that the DSS’s leader and followers are less likely to be of interest to others because followers will be focussed on social work rather than politics.
[16] (accessed 12 September 2023)
[17] (accessed 12 September 2023)
[18] (accessed 25 July 2023)
[19] (accessed 12 September 2023)
[20] (accessed 12 September 2023)
The Tribunal put to the applicants that it might find they would not face a real chance of serious harm as a result of [Mr A]’s support for the Congress party in the past or the future if they returned to India. [The first applicant] responded that in India, if someone runs you over with a truck the police don’t care. She said they have enemies in India and not in Australia and people are still looking for them. The Tribunal has considered her response but does not accept it as it does not respond to what was put to her. [The second applicant] stated that people always hold grudges. The Tribunal has also considered his response but does not accept it as it is very general and not supported by probative evidence.
[The second applicant]’s mental health
[The second applicant] was brought to Australia by his parents when he was [Age] years old. [The second applicant]’s parents have previously provided evidence on his behalf about mental health issues he suffered as a child in Australia. The previous Tribunal found there was a lack of independent medical evidence about his situation since 2012.
As [the second applicant] is now a [Age]-year-old adult, the Tribunal invited [the second applicant] to provide his own evidence about his mental health situation and what it means for him. In his letter provided at the hearing on 27 July 2023, [the second applicant] explains that he experienced mental health issues as a child due to the uncertainty of his situation. He said this continues, along with the fear of being uprooted from the only home he has ever known, namely, Australia. He states that having to return to India, which is a place he has little knowledge of, would jeopardise his mental wellbeing and hinder the progress he has made towards establishing a stable life in Australia. After the hearing, [the second applicant] provided a copy of a letter from [Organisation, Suburb] dated 10 August 2023 confirming he was referred there in early 2021 and receives assistance in the form of Cognitive Behavioural Therapy and Acceptance and Commitment Therapy for symptoms of depression and anxiety that are related to the uncertainty and instability around his visa status. He also attached a completed ADHD checklist dated 11 February 2021.
In the Tribunal hearing, [the second applicant] gave evidence that he no longer experiences the health problems he had as a child, but he continues to see a psychologist and monitors his mental health because he finds the lack of stability about his situation difficult to deal with. He said his mental health is a reason he fears returning to India. When invited to explain why, he said because he considers himself Australian and would not know how to live in India. When asked how he says that would result in him suffering serious harm, he referred to his connection with his father due to his involvement with DSS and how people in India behave towards followers of DSS. The Tribunal does not consider this response to be connected to his mental health. [The second applicant] went on to say he wants the stability which Australia has provided. He told the Tribunal he has ADHD. He is not currently taking medication but he plans to start taking it again because he intends to resume study and it will assist him, along with having a routine.
[The second applicant] provided the Tribunal with a copy of his curriculum vitae which indicates he has succeeded in a series of roles focussed on sales and social media and suggests he is highly-motivated and competent. Earlier evidence provided by his parents indicate that he was a very able student at school. He gave evidence in the Tribunal hearing that since January 2022 he has worked as [an Occupation] for [Employer 1] and before that he worked in [Occupation] for [Employer 2]. He is planning to undertake further study in the area of [Subject 2].
The Tribunal accepts that [the second applicant] suffers from symptoms of anxiety and depression and that he has ADHD. Based on the evidence before it, the Tribunal finds that he manages his depression and anxiety symptoms without medication and he is able to function effectively, including working full-time and successfully pursuing his career. The Tribunal accepts that he intends to resume taking medication for his ADHD to assist him to focus when he resumes study, but currently, he manages his ADHD without medication.
The Tribunal discussed with [the second applicant] country information such as the DFAT Report which states that mental health services and medication are available in India for mental health issues, although their availability is variable and generally more accessible in urban areas. The Tribunal put to him that based on the evidence, it might find that he would not face a real chance of serious harm due to his mental health situation if he returned to India in the reasonably foreseeable future. [The second applicant] responded that he has grown up in Australia and has no idea about life in India and doesn’t know what will happen to him. Other than quite general statements, [the second applicant] has not provided specific evidence about how he claims returning to India would jeopardise his mental wellbeing and what the consequences of this would be for him.
The Tribunal is very sympathetic to [the second applicant]’s situation and concerns and acknowledged to him that it would not be easy for him to re-establish a life in India, but noted he has considerable skills and experience and he would be part of a supportive family. Based on the evidence before it, the Tribunal finds that if [the second applicant] returned to India in the reasonably foreseeable future he would be able to continue to manage his mental health effectively as he does in Australia and he would not face a real chance of serious harm due to experiencing his symptoms of depression and anxiety and having ADHD, or due to his claimed future difficulties of adapting to an unfamiliar environment in India.
For completeness, the Tribunal did not understand [the second applicant]’s response referred to above about suffering serious harm due to his father’s involvement with DSS and the way in which people behave towards followers of DSS to be connected to his mental health claims. However, if the Tribunal misunderstood this, it has considered this possible claim. For the reasons explained above, the Tribunal has found that [the second applicant] would be an ordinary follower of DSS in India and he would not face a real chance of harm or serious harm as a result of this. Based on the evidence before it, the Tribunal considers this includes any impact on his mental health as an ordinary follower of DSS. In terms of being connected to [Mr A], the Tribunal has considered this below.
Do the applicants meet the refugee criterion?
As set out above, [the first applicant] claims she fears harm if she returns to India for the following reasons:
·     their Akali Dal enemies in India threatened her daughter and will threaten them again if they return;
·     a truck hit and killed her brother-in-law and this is connected to [the first applicant] being a follower of DSS;
·     she will be harmed as a follower of DSS;
·     as a family member of [Mr A] she will be harmed due to [Mr A]’s profile;
·     they have nothing in India now, including no source of income.
As set out above, [the second applicant] claims he fears harm if he returns to India for the following reasons:
·     the same Akali Dal people who harassed his family in the past in India started to harass his sister in 2022 and ask about [Mr A]’s whereabouts and he still fears those people;
·     he fears harm as a follower of DSS;
·     he fears harm as a family member of [Mr A] because of [Mr A]’s profile, including how [Mr A] would follow DSS if he returned to India;
·     he fears returning to India due to the youth drug culture;
·     he has lived in Australia for so long that India culture is alien to him and it would be difficult for him to adapt;
·     the prolonged uncertainty around his visa situation has given him mental health problems and relocating to India would jeopardise his mental well-being.
For the reasons set out above, the Tribunal does not accept that the applicants’ former Akali Dal enemies threatened or harassed [Ms C] from 2022 until she left India, or asked about [Mr A]’s whereabouts, or that those people are still interested in the applicants or that they would threaten or harm the applicants if they returned to India in the reasonably foreseeable future. Therefore, the Tribunal does not accept the applicants’ claim that they would face a real chance of serious harm arising from these circumstances if they returned to India in the reasonably foreseeable future.
For the reasons explained above, the Tribunal does not accept that a truck hit and killed [the first applicant]’s brother-in-law due to his connection with her being a follower of DSS. Therefore, the Tribunal does not accept the applicants’ claim that they would face a real chance of serious harm arising from these circumstances if they returned to India in the reasonably foreseeable future.
For the reasons explained above, the Tribunal finds that if they returned to India in the reasonably foreseeable future, the applicants would behave as ordinary followers of DSS and that as such, and based on the country information referred to above, they would not face a real chance of serious harm arising from these circumstances.

The Tribunal has considered the applicants’ claim that they will be harmed as family members of [Mr A] due to his profile. For the reasons explained above, the Tribunal finds that if [Mr A] returned to India in the reasonably foreseeable future, he would have a profile as a person who was well-known in his area in the past for organising and promoting DSS activities and for his support of the Congress party before he left India in 2008, who had not been involved with these activities in India since he left in 2008, who has continued to follow DSS quietly and privately in Australia by choice, who would continue to follow DSS in India as an ordinary follower and not an activist, and who would continue to support the Congress party as a voter but not as an activist. In the Tribunal’s view, given [Mr A]’s profile, along with the considerable length of time that has passed since [Mr A] and the applicants left India, the changed political landscape in Punjab and the changed situation for DSS which are discussed above, and the Tribunal’s finding that neither [Mr A] nor the applicants (nor [Ms C]) have received any threats since they left India and came to Australia from the people who previously threatened [Mr A] in India, the Tribunal does not consider that [Mr A] would be a person of adverse interest to the people who previously harmed him, or to anyone else, if he returned to India in the reasonably foreseeable future. For the same reasons set out above, the Tribunal finds that the applicants would not be persons of adverse interest to the people who previously threatened [Mr A] (and the applicants through him) or to anyone else and they would not face a real chance of serious harm due to [Mr A]’s profile or as family members of [Mr A] if they returned to India in the reasonably foreseeable future. Further, based on the evidence before it and the Tribunal’s findings above, the Tribunal finds that [the second applicant] would not face a real chance of harm or serious harm to his mental health as a result of his connection to [Mr A] and [Mr A]’s involvement with DSS if he returned to India in the reasonably foreseeable future.
The Tribunal has considered [the second applicant]’s claim that he fears returning to India due to the youth drug culture and in the hearing asked him whether he continued to rely on this claim. [The second applicant] responded that from what he has heard, the company a person keeps turns you into who you are and he doesn’t want to be involved in anything like that. The Tribunal has considered his response and finds that if he returned to India in the reasonably foreseeable future he would not involve himself with drugs and would not face a real chance of serious harm arising from these circumstances.
For the reasons explained above, the Tribunal has found that [the second applicant] would not face a real chance of serious harm due to his mental health situation or the challenges he would face adapting to life in India if he returned there in the reasonably foreseeable future.
The Tribunal has considered [the first applicant]’s claim that the family cannot return to India because they have nothing there now and no income. In the hearing, she said that they have accepted Australia as their home, they live here without fear and they have nothing to return to in India. While the Tribunal acknowledges it would be difficult for the applicants to return to India after living in Australia for 15 years and they have extended family living in Australia, the Tribunal put to them in the hearing that they have family in India, they have skills and experience establishing life in another country, they have experience running a successful business in India, they would support each other, and they could draw on these skills and resources if they returned to India. Further, [the first applicant] has spent the majority of her life in India and [the second applicant] has qualifications, work experience and language skills. Therefore, the Tribunal finds that if they returned to India in the reasonably foreseeable future, the applicants would not face a real chance of serious harm arising from these circumstances.
Taking into account the findings set out above, and having considered the applicants’ claims singularly and on a cumulative basis, the Tribunal is not satisfied that if [the first applicant] or [the second applicant] returns to India now or in the reasonably foreseeable future that either of them has a well-founded fear of persecution for a Convention reason, or for any other reason.
Accordingly, the Tribunal is not satisfied that either [the first applicant] or [the second applicant] has a well-founded fear of being persecuted for any of the reasons set out in the Refugees Convention, or for any other reason. As the Tribunal is not satisfied that [the first applicant] or [the second applicant] have a well-founded fear of persecution, it is not satisfied that either of them meets the definition of refugee in Article 1A(2) of the Refugees Convention. As [the first applicant] and [the second applicant] do not meet the definition of refugee, the Tribunal is not satisfied that either of them is a person in respect of whom Australia has protection obligations under s 36(2)(a).
As explained above, it is not the Tribunal’s role in this case to consider the applicants’ claims in relation to the complementary protection criterion as this has already been done by the previous Tribunal.
Conclusion
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s 36(2)(a) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants Protection visas.
Rachel Da Costa
Member

[2023] AATA 3317

12 September 2023

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