2006212 (Refugee)

2006212 (Refugee) [2020] AATA 6090 (30 June 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2006212
COUNTRY OF REFERENCE:                   India
MEMBER:Luke Hardy
DATE:30 June 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 30 June 2020 at 12:05pm
CATCHWORDS
REFUGEE – protection visa – India – Federal Circuit Court remittal – imputed political opinion – father’s opposition to Blue Star operation – disappearance – particular social group – membership of father’s family – harassment by police – credibility issues – delay in protection application – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 March 2020 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant is a Sikh from the region of Amritsar city in the state of Punjab in India. He is an Indian citizen. He first arrived in Australia on a student visa [in] May 2009 a month after the visa was issued. His passport had been issued passport issued [in] 2008, over a year before.
[The applicant] renewed his student visa several times. He also returned to India several times between February 2012 and December 2016. Some of those visits lasted a month or more; the first lasted three months. He also visited [Country 1], a state signatory to the Refugee Convention and Protocol, but did not seek asylum there.
[The applicant] lodged an application for a Regional Employer Nomination (class RN subclass 187) Direct Entry visa on 13 February 2017. The former Immigration Department refused the application on 4 October 2017. [The applicant] lodged a review application with the AAT, which dismissed his application on 10 April 2018, due to his non-appearance for a scheduled hearing in the matter. [The applicant] sought judicial review of the Tribunal’s decision, but the federal Circuit Court upheld the latter, dismissing the application [in] August 2018. [The applicant] carried a series of bridging visas until a month after the court’s ruling, his last bridging visa expiring on 28 September 2018. He was then unlawfully in Australia.
[The applicant] was charged in January 2020 with a number of criminal charges in relation to which he was remanded. A period followed during which [the applicant] was transferred from [prison] in [State 1] Immigration detention and back again. He lodged a protection visa application on 13 January 2020. He was granted a bridging visa on 23 January 2020. The Minister’s delegate interviewed [the applicant] by telephone at [prison] on 30 January and 14 February 2020.
The delegate refused to grant the visa on 5 March 2020 and [the applicant] sought review by this Tribunal. Meanwhile, some charges were apparently dropped; more relevantly, [the applicant] was transferred from criminal to immigration detention on 19 March 2020. His bridging visa appears to have been cancelled.
The Tribunal endeavoured to set up a hearing with him between the Sydney hearing rooms and the [detention] facility in [State 1], only to be told he was remanded back to [the prison] on new charges. The Tribunal continued to monitor these movements and ascertained that [the applicant] was apparently bailed and, in any event, transferred into immigration [detention]. The Tribunal scheduled a hearing for Friday, 26 June 2020.
[The applicant], at [immigration detention], appeared before the Tribunal, constituted in Sydney, on Friday 26 June 2020 as scheduled. He was accompanied, as it were, by a friend acting as representative via telephone. An interpreter in the Punjabi-English medium facilitated the hearing, also by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal exercised its discretion to have the representative and interpreter present via telephone. I determined it was reasonable to do this, having regard to the nature of this matter and the individual circumstances of the applicant. I also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and to the delay to the matter if the hearing were not to be conducted by telephone. [The applicant] raised no reservations about proceeding by video with his representative and interpreter attending via telephone.
There were occasional issues with sound volume, usually remedied by reminding [the applicant] to face the microphone on the desk in front of him whenever he was speaking and by asking the interpreter occasionally to repeat her translations a little more slowly. [The applicant] and his representative both confirmed at the end of the hearing that [the applicant] had been provided with a fair opportunity to give oral evidence. At one stage in the hearing, [the applicant] said he had some difficulty recalling precise dates due to medication he was taking in detention. As discussed below, I took this into consideration and worked with [the applicant] by recalling dates he had previously provided in writing for events described in his claims. In this way we were able to confirm certain dates already provided in writing. Overall, I am satisfied that [the applicant] was not prevented by factors beyond his control from giving cogent oral evidence to the Tribunal.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the "refugee" criterion, or on other "complementary protection" grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, he or she is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she is outside the country of his or her former habitual residence and, owing to a well-founded fear of persecution, is unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a 'well-founded fear of persecution' and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) ("the complementary protection criterion"). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration - PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines - and relevant 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues
The main issue in this case is whether, on accepted facts, [the applicant] is entitled to protection in Australia as a refugee or, if not, on complementary protection grounds.
For the following reasons, I have concluded that the decision under review should be affirmed.
Original claims to the Department
In his application to the Department of Home Affairs (the Department), [the applicant], born in [year], claimed to be a Sikh from [Village 1] in the environs of the city of Amritsar, Punjab state. He claimed to have been educated to “Year [grade]” level, which he later described as equivalent Year [grade] in Australia, in 2002 at [age]. He claimed to have resided at the same address all his life until October 2008, around eight months before he came to Australia. He provided no employment history and no biographical details regarding his immediate family. He declared that he did not receive help from anyone to complete his protection visa application form.
[The applicant] claimed that he left India due to “personal enemities [sic] with higher authorities/people/government, political party.” He said he might be subject to the death penalty or at least severe injury if he ever returned to India. However, he went on to indicate that the circumstances that caused him to leave India existed before he first came here in 2009. As noted, he returned to stay in India several times over the next seven or eight years.
[The applicant] claimed his father was taken by police and “during that time we got no help and I have face death threats by the concerned people in government and police.” He said that the political party Akali Dal and the police were opposed to his father and himself. He said he could not safely live in a different part of India because he did not have resources.
I note that because [the applicant] was born on [date], it is not biologically possible that his father disappeared in 1984. [The applicant] addressed this issue at the Tribunal hearing.
Evidence to the delegate
For the purposes of this review, [the applicant] submitted a copy of the delegate’s decision in this matter. The record of the primary decision contains a summary of all of [the applicant]’s claims including oral evidence he gave at interview; it also contains a summary of issues the delegate raised with him, along with citations of independent country information on which the delegate apparently relied.
The delegate’s decision refers to four documents that [the applicant] re-submitted to the Tribunal. These comprise four separate statements including affidavits from individuals including [the applicant]’s mother to the effect that his father was taken by police in 1991, not 1984. Three of these statements give a precise date: [July] 1991. All of the witnesses assume that [the applicant]’s father was killed by the police.
The delegate, although referring to these four statements, appears to have treated “1984” as something more like the date of the source problem between authorities in Punjab and some members of the Sikh population there, including [the applicant]’s father. The delegate acknowledged the claim to the effect that [the applicant] had only been “a toddler” when his father was killed.
The delegate summarised [the applicant]’s claims thus:
The applicant’s claims for protection are summarised below:
 The applicant is a follower of the Sikh faith and believes he will be targeted by the government and local authorities for this reason.
 The applicant’s father was a religious Sikh and was killed by authorities around the time of the attack on the Golden Temple in 1984, also known as Operation Blue Star.
 His father was religiously active within the community.
 The applicant was an infant when his father was killed. When the applicant was in approximately grade [level] at school he started enquiring with the local police as to why and how his father was killed. Consequently the police started harassing and threatening the applicant as a result. The applicant’s brother started enquiring with the police into their father’s whereabouts and death with the police. His brother has also experienced harassment and physical assault by the police as a result.
 The police raised false cases against the applicant and harassed his family.
 The applicant’s extended family are affluent and influential within his local community. They have political positions and are affiliated with the Akali Dal Party in India. He believes that it is his extended family who are the ones who have been causing him and his family problems with the local authorities. He believes they will create further problems for him in future.
 Many threatening incidents happened between 2007 and 2009.
 The applicant indicated that one of the prison guards is an Indian Sikh officer who is creating trouble for the applicant in India. This officer is linked to a criminal group known as Sarpanch and has been involved in creating false cases against the applicant. The applicant suspects he might have links to the Punjab Police network in India. He has been told via audio that there is a case against him back in India. He believes this officer is phoning people in India personally and has high profile links back home.
 Due to personal enmities with higher authorities, the government, people and political parties, the applicant fears he will be harassed, physically and mentally abused should he return home.
 He believes he would be subjected to death, severe injury or become disabled.
 He is very scared of the police. He has escaped from his home many times and lived in different locations as a result.
 He has no resources.
 The political party, Akali Dal, and the government police are against the applicant and his father.
[The applicant] told the delegate that he came to Australia as a dependent on his ex-wife’s student visa. He said they had since divorced. He said he was now in a relationship with an Australian citizen.
[The applicant] evidently described his mother and two brothers as still living in Punjab.
[The applicant] told the delegate he did not face being persecuted for reasons of his religion. He claimed affiliation with no political groups. He said the reason for the harm he feared was all to do with his link to his father.
[The applicant] told the delegate that in 2007 he voted for the Akali Dal party and that this was about the extent of his political activity. He said his relatives were rich and influential members of the Akali Dal party. He said that some political groups gave assistance to his family after his father was killed.
[The applicant] said that some of his extended family members were not only members of Akali Dal but had links with political leaders and were also members of Shiromani Gurdwara (temple) Parbandhak Committee, but was apparently unable to say which relatives they were or what they do through this committee.
[The applicant] said he had been told his father had been a devout Sikh but added that he did not know any specifics. [The applicant] mentioned Operation Blue Star, during which the Indian military removed the militant Sikh leader Jarnail Singh Bhindranwale and his followers, saying that this operation that had begun in 1984 was the context in which his father was later taken.
[The applicant] evidently told the delegate that he started making enquiries into the circumstances of his father’s death when he was still in Year [grade[ at school. I note that he would have been about [age] at the time, and the year would have been around 2001. He evidently said he made further enquiries between 2007 and 2009 and that the police did not take kindly to his attention. He said that on these occasions he would wait for long periods at the police station until the police spoke threateningly at him, telling him that because he was the son of his father they would frame him with criminal offences. He said the police never physically harmed him. He said they raided his home many times. He referred to a number of instances of low-level harassment between 2007 and 2009.
[The applicant] evidently claimed that his brother approached the police enquiring after facts relating to their father. He claimed to the delegate that the police lodged a false case against his brother on one occasion in 2016. He said this led to his family moving out of their house and moving in with a relative nearby.
[The applicant] claimed to the delegate that he had been attacked whilst riding a motorcycle by two men with swords on another motorcycle. He said he evaded them by accelerating. He said this happened around the time he finished Year [grade] in 2002.
The delegate evidently raised with [the applicant] some concerns about his many visits to India after 2009, indicating the potential of this activity to undermine the credibility of his claims. In response, [the applicant] evidently said he met his family in [Country 1] because it had not been granted visas for Australia, and returned to India for similar reasons. He said he usually stayed home whilst in India, generally just visiting the temple. He evidently did not suggest he faced any potentially relevant harm during his many visits to India.
[The applicant] provided evidently scant details to the delegate regarding the claim about the prison officer in [City 1]. He claimed to have heard about the officer’s actions against him by word of mouth from India. [The applicant] evidently claimed to the delegate that he had stayed in contact with his family, through his mother, only up until just before the time of his recent incarceration in Australia. However, he said that cousin used to visit him while he was in jail.
[The applicant]’s primary decision record raises concerns about [the applicant]’s eleven-year delay in bringing his protection claims to light in Australia. The delegate put [the applicant] on notice that, taken together, his many visits to India and his delay in lodging a protection visa application in Australia undermined, in the delegate’s assessment, the credibility of his claims.
Independent country information
I have had regard to relevant content in the DFAT Country Information Report: India, dated 17 October 2018:
Sikhs
3.16 Sikhism is a monotheistic religion founded in the Punjab region (now part of both India and Pakistan) in the 15th century. Sikhs consider themselves disciples of the Ten Gurus, beginning with Guru Nanak (1469-1539) and ending with Gobind Singh (1666-1708). According to the 2011 census, the Sikh population of India was approximately 19 million, 1.7 per cent of the total population at that time. Most Sikhs (75 per cent) live in Punjab, where they comprise around 55 per cent of the population.
3.17 One of the points of difference between Sikh groups is the extent to which they support the creation of an independent Sikh state known as ‘Khalistan’. The 1966 creation of the Punjabi-speaking Sikh majority state of Punjab went some way to addressing these demands. During an internal struggle within the Sikh community in 1982, separatist leader Jarnail Singh Bhindranwale and his followers moved into the Golden Temple complex in Amritsar. In June 1984. The Indian government ordered the army to eject Bhindranwale and his followers from the complex in an offensive known as ‘Operation Blue Star’. The army bombarded the Golden Temple complex, inflicting serious damage. Bhindranwale and many of his supporters were killed during the operation.
3.18 In retaliation for Operation Blue Star, two of then-Prime Minister Indira Gandhi’s Sikh bodyguards assassinated her at her home in New Delhi in October 1984. In the days that followed, mobs seeking revenge for the assassination attacked Sikh homes and businesses, including in New Delhi. Approximately 3,000 people, mostly Sikhs, were killed in the violence. Security forces carried out further operations to suppress Sikh separatism during the late 1980s, during which allegations emerged of torture, extrajudicial killings and deaths in custody carried out by security forces.
3.19 Sources agree that, since the late 1980s and early 1990s, Sikhs have lived peacefully in India and the majority of Sikhs do not experience societal discrimination or violence. Sikhs who advocate for an independent ‘Khalistan’ may be subject to attention by authorities. DFAT assesses that Sikhs in India generally face a low level of official and societal violence and discrimination.

I note that although Operation Blue Star and the operation that followed it ended in 1985, Indian authorities were still trying to clear areas around religious sites in the early 1990s.[1]
[1] Crossette, B. "India Uproots Thousands Living Near Sikh Temple", The New York Times, 3 June 1990
The Indian Congress Party formed the national government at the time of Operation Blue Star. Punjab, at the time, was under “President’s Rule” and was directly governed from New Delhi.[2] The history of these times saw quite a bitter contest between the Congress party and the Akali Dal. At elections held in 1985, the Akali Dal party won state government with a sweeping majority (73 out of 117 seats).[3] However, the government was dismissed in 1987 and replaced again by President’s Rule, and effectively the Congress national government.[4] The situation in Punjab was sufficiently unstable in June 1991 for scheduled state elections to be cancelled and the President’s Rule to be extended.[5] By this stage two Indian Prime Ministers had been assassinated, Indira Gandhi by two Sikh bodyguards in 1984 and her son Rajiv Gandhi by Tamil insurgents in 1991.[6] In February 1992, Beant Singh of the Congress Party became chief minister of Punjab following elections boycotted by the Akali Dal, but was assassinated in 1995.[7]
[2] Ibid.
[4] Ibid.
[5] Ibid.
[6] Ibid.
[7] Ibid.

The Akali Dal, or Shiromani Akali Dal, is a right wing-Sikh identity party. The Shiromani Gurdwara Parbandhak Committee (SGPC) is its volunteer support body.[8] It has split into factions respectively sympathetic with the (sovereign Sikh state) Khalistan movement and the Hindu nationalist BJP, which currently governs India.[9]

[8] “Shiromani Akali Dal, since 1920,” The Tribune, 15 December 2019, “India,” Political Handbook of the World Online Edition, CQ Press Electronic Library, originally published in Political Handbook of the World 2009, edited by Arthur S. Banks, Thomas C. Muller, William R. Overstreet, and Judith F. Isacoff (Washington: CQ Press, 2009),

The Akali Dal governed Punjab 1997 to 2002 and from 2007 to 2017. The Indian Congress party governed Punjab from 2002 to 2007. The current government, elected in 2017 for five years, is led by the Indian Congress Party. The main Opposition party is the Aam Aadmi Party with 20 seats in the 117-seat state assembly. The Akali Dal has only 13 seats, making it now a small minority opposition party in Punjab.[10]

[10] "AAP removes Khaira, appoints Harpal Cheema as leader of opposition," The Tribune, 27 July 2018

More recently, the Akali Dal leader and spokesperson Daljit Singh Cheema has said that the Khalistan project is no longer an issue in Punjab and that any splinter groups advocating for an independent Sikh state are in the pockets of disruptive Pakistani elements.[11] To the extent that there have been any security issues in Punjab in more recent years, these have been due to the Indian state having to deal with groups like Jaish-e-Mohammed and Laskkar-e-Taiba, two groups operating out of Pakistan against India’s presence in Kashmir.[12] No evidence before me indicates that the fractious situation between the state of India and the Sikh population in Punjab continued much into or past the 1990s.

[11] “Khalistan not an issue anymore: Akali leader,” Business Standard, 9 July 2019, “Punjab government steps up security after threat of attack by JeM, LeT terrorists,” ZeeNews, 7 August 2019, evidence

The first of four statements submitted by [the applicant] is an affidavit from his mother, who says that her husband disappeared on 29 July 1991, on the same day as two friends from the same village. She declares that authorities “stonewalled” the family’s efforts to find out what happened to him, but police from neighbouring villages privately told the family that he had been killed. She says that she eventually let go of trying to find out the ultimate fate of her husband because she had to concentrate on raising her children. She says that [the applicant] was responsible for the family’s farming business from an early age and suffered from bouts of depression throughout his life. She does not suggest that [the applicant] took up the cause of investigating his father’s fate or ever faced any harm from the police.

The second statement is from the patron of the Khalra Mission Organisation The patron reports that [the applicant]’s father was “one of thousands [of] unlucky Sikhs who were killed and disposed of by Indian Security forces.” She says [the applicant]’s father was kidnapped [in] July 1991, his case having been documented by her late husband who was himself kidnapped and likely killed in 1995. She says around 25,000 Sikhs were extrajudicially killed in those days. She says [the applicant] has been severely affected by this event and was at some undefined stage the subject of police intimidation because he is his family’s elder male. She does not refer to [the applicant] having been involved in investigating his father’s killing.

The third statement is an affidavit from a number local village council members corroborating the claimed date of [the applicant]’s father’s disappearance and saying that “everyone in our area knows about this incident and many more like [it]” at the time. The same statement says that [the applicant]’s family undertook efforts to ascertain more information abut what happened to his father but met with “threats and intimidation” from the state.

The fourth statement is from a welfare group that assisted [the applicant]’s family after his father “fell victim to state butchery back in 1991.”

The general position in all four of the statements provided appears to be that the treatment of [the applicant]’s father in the early 1990s, nearly thirty years ago, was peculiar to events of the time.

At short notice, at the commencement the Tribunal hearing, [the applicant] offered the telephone number of another potential witness currently residing in Australia. [The applicant] said the witness is a friend whose father used to know his own and who could attest to what is known of the date and circumstances of the latter’s disappearance and long-assumed death. I considered [the applicant]’s interest in having me hear from this witness but, on the evidence before me, there were already five people including [the applicant] attesting to his father having been done away with by Indian security forces in July 1991 and saying that little else has been ascertainable in in the matter. I put to [the applicant] that in these circumstances it seemed unnecessary to call the proposed witness. [the applicant] agreed and accepted this.

Evidence at the hearing

[The applicant] told me early in the hearing that he has been taking medication and that it makes it hard for him to remember dates from the past. This was apparent at one stage of the hearing when he said he finished school around 2004, although he did say he was not sure of that date. He also said at one stage that he was [age range] when he finished school. When I drew his attention to having claimed in his original protection visa application that he finished going to school in 2002, he said that 2002 was the correct date. It is also more consistent with the age at which [the applicant] left school: around [age range], having finished what he called the equivalent of Australian Year [grade].

[The applicant] told me his father disappeared in 1991 and that the reference to “1984” in his original protection visa application was erroneous, his having meant to describe the origins of the conflict during which his father vanished.

[The applicant] said his mother and two younger brothers still live in Punjab near Amritsar. He said his mother makes a living from the family land on which the family grows wheat rice and vegetables. He said his middle brother works on the family land and sometimes works on land nearby belonging to his late father’s sister-in-law. He said the youngest brother stays at home due to some “mental issues.” He said all the brothers were born at intervals of about two years, the youngest apparently born in the year their father disappeared.

[The applicant] said hat his father was picked up by the police while he was farming. He said that the police “used to do” that sort of thing back then. He repeatedly described the police’s actions as something they “used to do” at that time.

[The applicant] claimed at the hearing that the police and the government were responsible for his father’s death. As noted above, the government at the time was the Indian Congress Party nationally; it was essentially the same in Punjab by way of President’s Rule.

Speaking to a claim he had originally made in writing to the Department, [the applicant] said that his family had been harmed by the Akali Dal party. He said it had been “distant family members” who belonged to the Akali Dal who had had his father killed. He said his immediate family found this out when he was in Year [grade], when he would have been around [age] years old, in or around the year 2000. I asked [the applicant] why the Akali Dal, a pro-Sikh party, would have had his father killed and he did not answer the question on its point; rather, he went on to say that his father was killed by the national government (Congress) and the government of Punjab (which was actually non-existent at the time since Congress was governing Punjab from New Delhi through the President’s Rule). Independent evidence indicates that these two entities were enemies of the Akali Dal at the time. I questioned the logic of what [the applicant] was claiming, essentially about the Akali Dal and Congress being in cahoots, and he did not help to clarify the matter. He just said that the Akali Dal was very powerful. I repeated my concern that his position was incomprehensible, in that it was incongruous with independent information about the Akali Dal being opposed to the Congress Party, and in reply he simply referred to the attack on the Golden Temple in Amritsar by the military in 1984, which was at a time when the Congress party governed both India and Punjab, with its opponent the Akali Dal not gaining government until the following year.

[The applicant] said he had heard that his father had been angry about the attack on the Golden Temple in Amritsar in 1984. I put to him that the Akali Dal was also evidently opposed to the attack on that sacred Sikh site and that it was critical of Congress at the time. In reply, [the applicant] said that the posture of the Akali Dal at the time had been a “drama” and that it was actually involved or complicit in the attack. He did not provide any material to support this position. I questioned the logic of this claim and [the applicant] said, “People told me that the Akali Dal only pretended to be angry about the attack on the Golden temple.” I asked him if that might, at best, be some baseless conspiracy theory. In reply, [the applicant] said that “after 1984, all this drama was created to kill [my father].” Overall, his evidence here struck me as confused, implausible and fanciful.

I asked [the applicant] if he worked in Punjab during the years following his finishing Year [grade]. He gave a variety of different responses to this question, first saying he did not work and that he was hiding from the police, then saying that he sometimes stayed with his aunt who lived near his own family home, then saying that he sometimes helped out on the farm in both locations. Then he said he worked in his home village whenever he was there. I put to him that it did not sound like he was hiding from the police doing any of these things and he said he did not tell anyone what he was doing at the time.

[The applicant] claimed he also used to go and stay in new Delhi from time to time, usually after the police “tortured” him. I asked him to define “torture” and he said that the police never physically harmed him but used to ridicule him and put him down, making him feel worthless, whenever he went to the police station to ask them, over and over, what had happened to his father. He said his family suffered similar treatment, never being physically harmed but insulted by the police when they asked for information. I asked [the applicant] when he first became aware that the police had done away with his father and he said that he did so after he finished Year [grade] or while he was still in Year [grade]. I reminded him that he claimed, in his original protection visa application, to have started his enquiries with the police while he was still in Year[grade], and he said this was more correct.

I asked [the applicant] to explain why, given that his family already knew the police were responsible but stonewalling all efforts to find out more, he kept trying to interrogate the police year after year. In reply, he said, “Why kill him?” I put to him that he seemed to know why the police killed his father, being that he was a Sikh who may have appeared to be opposed to Operation Blue Star and subsequent crackdowns.

I asked [the applicant] if his brother had ever been physically harmed by the police and he said he was not, but merely insulted. He said the police “used to” harass his brother mentally and lodge false charges against him. I put to him that he seemed to be saying that this behaviour was back in the past and did not continue, and then he said that the mental harassment of his brother still continues. I weighed this claim beside the claim about [the applicant]’s brother still living in the village continuing to farm there on the family’s land.

I asked [the applicant] why he came to Australia in 2009 and he said he did so “for my future.” I put to him that he did not lodge a protection visa application until ten or eleven years later. In reply, he said nobody had “guided” him to do so. I asked him if he applied for any visas other than the student visas he held as a dependant of his ex-wife, and he said he did apply for permanent residence under an employer-nominated scheme in 2015 or 2016. He said the government refused him in 2016 and that he tried again, also unsuccessfully in 2017. [The applicant] might have been referring here to his applications for merits and judicial review of the same visa refusal, but in any event he does appear to have had access to some level of migration advice at least from 2015 or 2016 onwards. After he failed to obtain permanent residence in 2017, as he said, he still did not apply for protection until 2020, which is a delay of three years.

I asked [the applicant] when he did first find out that he could apply for a protection visa here and he said it was in 2019. I asked him who had guided him in this matter and he said he had been assisted by an Indian lawyer. He said he was living in [City 1]. He said it was in November or December 2019. I put to him that he did not apply for protection in 2019 and he said, “I got late organising it.”

I put to [the applicant] that it was hard to see that he ever fled persecution in India because, according to his passport, he returned there many times up until 2016 (when, I note, his employer-nominated visa issues started to involve him) and stayed there for substantial periods. In reply, he said his mother had been too sick to visit him in Australia so he used to go there. I note that he made three visits to India in 2015 alone. I put to him that all of these visits appeared to have been voluntary and discretionary, with no-one stopping him on the way in or out. In reply, he said that in 2012 and 2014 he stayed in his village but on the later visits he did not go there; this after just having told me he went to India to visit his family. I asked him where he stayed and he said he stayed with friends. I put to him that a person might ask if that were merely a case of visiting and staying with friends, and he said it was not.

I asked [the applicant] if he had any other claims to discuss and he said he did not. I asked his adviser if he thought anything had been omitted and he indicated that he had nothing to add.

Findings in relation to s.36(2)(a) of the Act

In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters.

The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either "well-founded" or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to "significant harm". It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Section 5AAA of the Act makes clear that it is the applicant's responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.

In assessing the credibility of an applicant's claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.

[The applicant]’s claims can reasonably be regarded as relating to two s.5J(1)(a) criteria: “membership of a particular social group” due to being a member of his late father’s family; and actual or imputed “political opinion” arising from his claimed interest in finding the facts behind his father’s arguably political murder, which he connects to his father having been at least subjectively opposed to Operation Blue Star and perhaps wrongly regarded by authorities in 1991 as a supporter of Sikh separatists. I exclude “religion” given that [the applicant] has evidently claimed he does not fear being persecuted for reasons of his Sikh religion as such.

I accept that [the applicant] is a Sikh. I accept that he has no affiliations with any political parties, religious factions, or any socio-political movements, least of all the pro-Khalistan movement that was the real focus of the state’s crackdown in Punjab in and after 1984.

I accept that [the applicant]’s father was subjectively opposed to Operation Blue Star. No evidence before me suggests that [the applicant]’s father was publicly opposed to the crackdown, but it can be assumed that Sikhs generally were opposed to what they would have seen as a violation of the Golden temple even f they did not support the Khalistan movement. On the evidence before me I find no basis for finding or even inferring that [the applicant] had any actual affiliations with any political parties, religious factions, or any socio-political movements, least of all the pro-Khalistan movement. I accept that [the applicant]’s father disappeared [in] July 1991, and draw no negative inferences from the poorly worded reference to “1984” in [the applicant]’s original protection visa application. I accept the evidence of [the applicant]’s mother to the effect that her family, which includes [the applicant], found out soon enough that her husband was taken and done away with by police who disposed of his body. On the evidence before me, however, I give weight to the words of the witness who is patrol of the Khalra Mission Organisation, being that [the applicant]’s father was “one of thousands of unlucky Sikhs who were killed and disposed of by Indian Security forces.” Independent evidence indicates that the 1980s and 1990s saw a lot of revenge killings with people in and out of uniform taking the law into their own hands. Significantly, I give weight to the lack of evidence of the conflict between Sikhs and the state in Punjab and India generally having continued much past the 1990s. In particular, I give weight to the evidence, cited earlier, to the effect that issues and political concerns in Punjab have moved well away from the old pro-Khalistan issue. I also give some weight to the evidence of [the applicant] who tended to say that what happened to his father was what “used to” happen.

I find that [the applicant] had a tendency at least to exaggerate some of his claims, for example when he referred to having been tortured, which he later explained to mean that the police used to insult him and belittle him. I do not accept that he was ever tortured. I make the same finding in relation to [the applicant]’s middle brother.
I was also struck by the confused, implausible and fanciful nature of [the applicant]’s claims about the Akali Dal and what he suggested was its role in his father’s fate. I give no weight to his claims about the Akali Dal, let alone his “distant relatives” in the Akali Dal having been involved in his father’s death. I consider these claims invented.
I am troubled by [the applicant]’s claims about having personally investigated his father’s death. It is hard for me to accept on the evidence before me that did so, but in any event, I find that the worst thing he suffered was insulting and demeaning talk from the police officers he claims to have approached. I find it particularly hard to accept that he investigated his father’s death repeatedly between 2001 and 2009 because, according to him, he repeatedly met with the same lack of success and the same insults and threats and, in spite of claiming to have remained devoted to the cause, never changed his approach, and merely kept visiting the same police stations and doing what he did before. In this way, I find his account lacks a ring of truth. Moreover, I find on the witness evidence before me that [the applicant]’s mother had already been told by police from a nearby village what had happened to her husband and that the community well knew the futility of trying to bring the state to account in the aftermath of such an event. [the applicant]’s unsupported claims about interrogating the police over around eight years are incongruous with facts he himself presented in his protection visa application.
In addition, [the applicant]’s claims about having to go repeatedly into hiding from the police were tarnished by several instances of inconsistency. For example, the locations of his so-called “hiding” places, being nearby friends’ and relatives’ homes, would have bene easy for authorities to locate if they were searching for him. Also, [the applicant] was inconsistent as to whether he worked between the time he finished school and the time he came to Australia. His description of hiding out in New Delhi struck me as having been improvised at the hearing, since he did not refer to it previously, such as in his original protection visa application.
I do not accept that [the applicant] was ever framed by Indian police in criminal matters prior to his departure for Australia in 2009 to stop him from investigating his father’s death, because he repeatedly and voluntarily visited his family in Punjab, in particular his mother who was too sick to travel, indicating that he was not afraid to be brought before a court in connection with the falsified cases brought against him. His movements were never curbed, he was evidently never summoned to a court and h kept going back again and again.
On the evidence overall, I do not accept that [the applicant] ever investigated his father’s death, let alone by interrogating police over and over.
In addition, I do not accept on the evidence overall that [the applicant] was threatened or intimidated for reasons of being his late father’s eldest son. His actions in returning to India repeatedly
As indicated, I give much more weight to [the applicant]’s having returned to India for lengthy visits, particularly the frequent visits in 2015.
As to [the applicant]’s claims regarding the [prison] guard, I give them very little weight in this matter, considering his exaggerations about “torture”, his implausible description of Alkali Dal as having been involved in his father’s death, the dismissed claims about false charges having been raised against him and his brother by police, and the unreliable claims he made about a complicity between the Indian Congress Party and the Akali Dal.
I give some weight to the fact that [the applicant] delayed applying for protection in Australia, long past his first arrival here, long past his last of his many return visits to India, long past his failure to achieve permanent residence here by another means and even with somewhat of a delay after purportedly ascertaining in 2019 that such a thing as a protection visa is potentially available to those who need protection here. He did not apply until he was detained and placed potentially on a removal pathway by the Department. On the cumulative evidence before me, I find that his protection visa application is disingenuous.
Having considered all of the evidence before me, I am not satisfied that [the applicant] faces a real chance of being persecuted in India in the reasonably foreseeable future for any reasons cited in s.5J(1)(a) of the Act. His claimed fear of being persecuted is not well founded. He is not a refugee.
For the reasons given above, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Findings in relation to s.36(2)(aa) of the Act
Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa).
A person is entitled to protection under s.36(2)(aa) if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.
Relevantly, s.36(2)(aa) refers to a "real risk" of an applicant suffering significant harm. The "real risk" test imposes the same standard as the "real chance" test applicable to the assessment of "well-founded fear" in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).
"Significant harm" for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she is subjected to the death penalty; or arbitrary deprivation of life; or torture; or cruel or inhuman treatment or punishment; or degrading treatment or punishment.
Article 7 of the International Covenant on Civil and Political Rights (ICCPR) prohibits cruel or inhuman treatment or punishment, degrading treatment or punishment, and torture, which are further defined in s.5(1) of the Act: essentially, all three of these definitions require that there be an intention to inflict harm by some act or omission.
Torture does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. Cruel or inhuman treatment or punishment does not include an act or omission which is not inconsistent with Article 7 of the ICCPR, nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. Degrading treatment or punishment does not include an act or omission which is not inconsistent with Article 7 of the ICCPR, nor one that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Accepting that [the applicant] is a citizen of India, I find that India is the “receiving country” in this case.
I find that the harm identified in [the applicant]’s case, includes at least “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” and “arbitrary deprivation of life.”
[The applicant]’s claims to complementary protection are essentially the same as the claims he has made for protection as a refugee. [The applicant]’s refugee claims have failed due to lack of credibility and/or due to there not being a real chance of his being persecuted in India. In the circumstances, [the applicant]’s protection visa claims can no more succeed as complementary protection claims than they have as refugee status claims.
Having considered all of the evidence before me, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to India, there is a real risk that [the applicant] will suffer significant harm.
Accordingly, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Other findings
There is no suggestion that [the applicant] satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, he does not satisfy the criterion in s.36(2).decision
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Luke Hardy
Member

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

[2020] AATA 6090

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