2007327 (Refugee)

[2022] AATA 2853

2007327 (Refugee) [2022] AATA 2853 (30 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2007327

COUNTRY OF REFERENCE:                   India

MEMBER:C. Packer

DATE:30 June 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 30 June 2022 at 12:11pm

CATCHWORDS

REFUGEE – Protection visa – India – religion – Sikhism – applicant was a member/activist of Shiromani Akali Dal – applicant has been active in Shiromani Akali Dal – dowry dispute and wife abandonment – Sikhs face only a low level of discrimination – applicant does not have a well-founded fear of persecution – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 91, 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

1. 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 applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of India, applied for the visa on 30 April 2013, and the delegate refused to grant the visa on 5 May 2015.

3. The applicant applied for review of the delegate’s decision. Tribunal 1 (differently constituted) held a hearing on 23 August 2017. On 25 July 2018 Tribunal 1 affirmed the delegate’s decision.

4. The applicant applied to the Federal Circuit Court, and by Court order [in] April 2020 the Federal Circuit Court [remitted] Tribunal 1’s decision on the basis that the decision had been affected by jurisdictional error. 

5. On 28 June 2022 the applicant attended my Tribunal hearing.

6. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether the applicant is entitled to complementary protection. A summary of the relevant law follows. The applicant’s narrative is centred on his fear of being harmed in his home area in Punjab State and throughout India, because of his support of the Shiromani Akali Dal (Amritsar) party. After considering his evidence and the material before the Tribunal, I accept he has supported the Shiromani Akali Dal (Amritsar) party and that he has an interest in Sikh matters particularly in Punjab state. But I do not accept that the applicant faces a real chance or a real risk of harm from the Indian authorities or any other state or non-state agents in India. My assessment follows.

   Relevant law

7. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

   Refugee criterion

8. 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).

9. 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.

10. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

11. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

12. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

13. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

14. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

15. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

16. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

17. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

18. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

19. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

20. 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.

    Mandatory considerations

21. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Background

22. The applicant’s protection visa application provided some basic background information, and the applicant supplemented this with further details at the delegate’s interview, Tribunal 1’s hearing, and at my hearing. In the written application, the applicant stated that he was born in [Fatehgarh] Sahib district, Punjab State. He knows and speaks Punjabi and English. His religion is Sikhism. He indicated he completed 12 years schooling in [year]; he had no employment in India. He showed parents and no siblings in India. He lived in the family home in Fatehgarh Sahib until he travelled to Australia in 2009.

23. On 9 April 2009 he was granted a Student visa, and on [date] April 2009 he entered Australia on an Indian passport as a student. In Australia he had undertaken courses although he showed no qualifications.

24. He showed travel outside Australia on a Student visa: departed [date] December 2010 and returned [date] February 2011. During this trip he married in India on [date] January 2011, and he returned without his wife. He had a second trip: departed [date] April 2011 and returned [date] September 2011.

25. On 24 November 2011 he applied for a Skilled Graduate 485 visa, that was refused on 18 July 2012. On 2 April 2013 the AAT affirmed the refusal decision.

26. On 30 April 2013 he applied for a Protection visa, and the delegate refused to grant the visa on 5 May 2015. He applied for review of the delegate’s decision. Tribunal 1 (differently constituted) held a hearing on 23 August 2017. On 25 July 2018 Tribunal 1 affirmed the delegate’s decision.

27. He told Tribunal 1 that his mother is deceased. His father suffers from a [medical] condition. He and his wife divorced by Court decree on [date] November 2016.

28. At my hearing the applicant said in India he had lived at the address given in his Indian passport: an address at [deleted]. He said his father lived alone in the family home, and the father financially supported himself by renting the top floor of the two-storey house, and through interest on a fixed deposit of [amount] lakh.

29. The applicant stated he financially supports himself by working for the past nine months as [an occupation]. Before that he was supported through [a] Sikh temple and friends including village friends, cousins and so on. He shares a house. His health is good, he is covid vaccinated, and he takes no medication. He speaks a little Hindi and is fluent in Punjabi and English. He undertook [courses] in Australia.

    Summary of claims

30. The applicant claims to fear persecution in India from the Indian authorities. His key claims in the application as summarised are:

    ·He is a Sikh.

    ·He was a member/activist of Shiromani Akali Dal (Amritsar).

    ·He has been active in Shiromani Akali Dal (Amritsar) Australia.

    ·In Australia he sponsored and funded a [book]. At interview[1] he explained he had contributed [amount] rupees [towards] two books that had at some time been published online, although not published in India.

    ·In Australia he contributed money towards production of a film, [name deleted] that was banned in Punjab State. The delegate’s decision[2] notes the ban on the film was lifted [in] 2013.

    ·On [date] December 2010 in India he was arrested during the election of the Shromini Gurdwara Prabandhak Committee (SGPC)- a major Sikh religious institution based in Amritsar.

    ·He joined [Organisation 1], publishing books etc.

    ·On [date] December 2013 police raided the family home, but no occupants were home. Neighbours said the police were inquiring about his whereabouts.

    ·In January 2014 one of his [social media] friends turned police informer, which led to active members being arrested. The applicant has been named as an active member living outside of India. At interview[3] he stated: he had communicated with an Indian police informant posing as a Sikh on [social media] in December 2013; he stopped using [social media] for a while but later had reactivated his account; he only uses [social media] to communicate with family members.

    [1] Discussed at page 7 of the delegate’s decision, provided by the applicant to the Tribunal case 1507290

    [2] Discussed at page 7 of the delegate’s decision, provided by the applicant to the Tribunal case 1507290

    [3] Discussed at page 7-8 of the delegate’s decision, provided by the applicant to the Tribunal

31. In Tribunal 1’s review his claims became, as summarised:

    ·He met the Shiromani Akali Dal (A) group through his wife’s uncle. Following this meeting, it was through discussion with his wife’s uncle that he came to hear about the “Khalistan movement” and the applicant decided to join this group and to participate within its organisations together with other like-minded Sikhs. Later, he involved himself with this political group in the local elections doing “many things”, and he came to the attention of the local police after he was reported to the police by some locals who did not approve of his activities and opinions. Accordingly, the local police told the applicant to “remain quiet” and not “to involve himself in any local political activities” or if he did, “he would have to leave the Punjab.” When the applicant’s parents heard about the police warnings, they feared for the applicant’s wellbeing. Thereafter, the applicant remained in his village for two months and after speaking with a friend in Australia who was also involved in the movement, the applicant left India from New Delhi for Australia in September 2011.

    • In Australia he was working with others collecting ‘information’ about the plight of the Sikh people in India. This publication was published electronically on the internet and it was later ‘blocked’ by the Indian authorities. After the authorities’ intervention on the internet, ‘copies of the book’ were despatched to India for distribution but were seized. The applicant’s email account used to monitor the distribution of the book in India was also hacked and no longer in operation or accessible, so he had no evidence.
    • The ADP’s party [Official 1], [visited] Australia and told the applicant that the applicant’s name still appeared in local police records. The authorities knew that he was collecting money at Sikh temples in Australia and sending those funds to India to assist Sikh families in distress. As a result of the applicant’s activism in Australia which was known to the authorities in India, he believes that he is and remains a person of interest to the Indian police and security forces.
    • In Australia he had survived because of the support he had been provided with by his close friends, including money, food and accommodation. As well he had been supported with his living expenses by the Sikh [organisation].
    • He had not in recent times involved himself in any ‘political activities’ via social media or ‘[social media]’.
    • His former wife’s family disapproved of his political activities and they caused him problems with his relationship with his wife and this eventually led to his marriage failing. His wife’s father had reported him and his activities to the authorities in 2013 and again, in 2016 when there was a religious book burning in India which according to the authorities had been organised by persons living in Australia.
    • The authorities had asked the applicant’s father about the applicant’s whereabouts.
    • He has outstanding issues with his wife’s family involving unpaid sums of money as a ‘dowry’ in the amount of 15 Lakhs of Indian rupees. The sum of 8 Lakhs was provided in the past by the applicant’s father. The dispute between the two families has continued because his former wife has been difficult and has persuaded her father to take the dispute over the dowry money (she claims is still outstanding) to the courts.

32. At my hearing he claimed that:

    ·He is a Sikh and so will face harm in India.

    ·He is a supporter of Shiromani Akali Dal (Amritsar) and had done activities in Australia and so will face harm in India.

    ·Many Sikhs and Shiromani Akali Dal (A) activists are being killed.

    ·He feared to return to India because high profile Sikh supporters had been suspiciously killed/murdered in Punjab state. He listed Sandeep Singh Sidhu, Subhamdeep Singh Sidhu, and Sandeep Singh Nangal. He asked me to research the deaths online.

    ·He lived for several months with a friend, and he financially assisted the friend with $400-500. The friend was wrongly accused of murder in India but at a time when the friend was in Australia. This friendship may bring the applicant to the authorities’ attention. He provided charge sheets after the hearing to support the claim.

    ·When he was in India he had campaigned for the party in an election 2011-2012 and he did door knocking. He did nothing else. He had been warned by the police and about two months later he departed India.

    Evidence

33. The evidence before the Tribunal includes the following material (not all is listed):

    ·the applicant’s Protection visa application form lodged on 30 April 2013

    ·a submission on 10 June 2014 that sets out further claims and information

    ·a letter of [July] 2013 from [Mr A], [Official 2] Shiromani Akali Dal (A)

    ·a letter of [April] 2013 from [Mr B] of [Organisation 1]

    ·passport pages, medical information

    ·the Protection visa decision record (‘delegate’s decision’) dated 5 May 2015, which is the subject of this review [the applicant provided a copy of the delegate’s decision to the Tribunal]

    ·the application for review, which has attached to it a copy of the delegate’s decision

    ·country information

    ·submissions and information concerning his divorce and divorce settlement, and threats made to his father

    ·Indian National Investigation Agency charge sheets in 2018 for a number of Sikhs allegedly involved with the Khalistan Liberation Force (KLF), concerning murders in India

1. The letter of [July] 2013 from [Mr A], [Official 2] Shiromani Akali Dal (A) stated in part, the applicant was a permanent member of the Sikh political party “which is struggling peacefully and democratically for the freedom of the Sikh peoples”. The letter claimed the applicant would be harmed if he returns to the State.

2. The letter of [April] 2013 from [Mr B] of [Organisation 1] states: “As per information gathered by our office it is certified that [the applicant] [is] active member of Shormani Akali Dal (Amritsar) and he works for human rights and against the atrocities committed by the Punjab Police. Due to that his life was in great threat from the Punjab Police. So he fled India to save himself.”

3. The applicant appeared before this Tribunal to give evidence and present arguments on 28 June 2022.

4. An internet search shows some authoritative articles about Sandeep Singh Sidhu, Subhamdeep Singh Sidhu, and Sandeep Singh Nangal, discussed following.

5. Sandeep Singh Sidhu. An article in Mirrornownews.com, Actor Deep Sidhu death - How the accident happened and why his friends suspect foul play, 16 February 2022, stated:

   Punjabi film actor and accused in Delhi Red Fort violence, Deep Sidhu died in a road accident on Tuesday. He was travelling along with his friend, Reena Roy. Prima facie it was a case of an accident, said the police.

   Sidhu's body has been sent for post mortem. Roy, who was also in the car, is out of danger. She had received minor injuries and has been discharged from the hospital. 

   How the accident happened

   The accident took place between 7:30 PM to 8 PM near KMP (Kondli - Manesar - Peripheral) in Sonipat. A CCTV grab of his SUV at Pipli Toll Plaza was recorded at 7:20 PM. '

   At around 7.45 PM, near Pipli Toll Plaza, Sidhu lost the balance out of his SUV while overtaking. A truck driver suddenly pushed the break and the SUV rammed into the rear side of the truck. The truck driver is absconding.

   A case has been registered against the truck driver at Kharkhoda police station of Sonipat, Haryana. He has been booked under Sections 279 (rash driving) and 304A (causing death due to negligence) of the Indian Penal Code at Kharkhoda police station of Sonipat, Haryana.

   Friends suspect foul play

   Sidhu's friends suspect foul play in the case as he was receiving threats from some people. His friends reached the spot late at night. They said that way the accident took place it seemed that the truck driver intentionally applied the break leading to the accident.

   The police have said that no foul play has been determined in the case as of now. The case is being investigated. The police also recovered some bottles of alcohol from Sidhu's car. 

   The police are inquiring about the version of the family. Post mortem examination is conducted by a team of three doctors at Sonipat Government Hospital.

   Sidhu was arrested last year in connection with the Republic Day violence at Red Fort. He was later chargesheeted and got out on bail.

   Meanwhile, Delhi Chief Minister Arvind Kejriwal has tweeted, "Deeply saddened to learn about the unfortunate demise of Deep Siddhu. My sincerest condolences for his family and friends. God bless his soul". [>

   Subhamdeep Singh Sidhu. An article in The Guardian, Sidhu Moose Wala: Punjabi singer and rapper shot dead, 30 May 2022, stated in part:

   Indian police are investigating the murder of a popular Punjabi rapper a day after he was fatally shot.

   Shubhdeep Singh Sidhu, better known by his stage name Sidhu Moose Wala, was killed on Sunday evening while driving his car in Mansa, a district in Punjab state, northern India. Moose Wala, 28, was taken to hospital where he was declared dead.

   Punjab state’s top police official VK Bhawra said the initial investigation had revealed the killing to be the result of an inter-gang rivalry.

   A day before the attack, Punjab’s government had pulled security cover for more than 400 individuals, including Moose Wala, in an attempt to clamp down on VIP culture, lo Moose Walawho blended hip-hop, rap and folk music, started off as a songwriter before a hit song in 2017 catapulted his singing career, making him well known among the Indian and Punjabi diaspora in countries including the UK and Canada.

   Most of his singles have an English title, though the songs were mainly sung in Punjabi. His glossy music videos often focused on macho culture. His debut album in 2018 made it to Canada’s Billboard albums chart.

   Moose Wala was a controversial figure, in part because of his lyrical style. In 2020, police charged him under India’s Arms Act for allegedly promoting gun culture in one of his songs.

   His latest track, The Last Ride, was released this month.

   The rapper joined India’s Congress party last year and unsuccessfully ran in the state’s assembly elections.

   Punjab’s chief minister, Bhagwant Mann, said he was shocked and saddened by the murder, adding that “no culprit will be spared”. [>

   Sandeep Singh Nangal. An article in The Indian Express, Kabaddi player Sandeep Nangal Ambian shot dead during match in Jalandhar, 15 March 2022, that stated in part:

   A renowned international kabaddi player was shot dead during an ongoing match of a kabaddi tournament at Jalandhar’s Mallian Khurd (Nivin Mallian) on Monday evening. The victim has been identified as Sandeep Singh Sandhu aka Sandeep Nangal Ambian (38).

   The incident took place between 6:15 pm to 6:30 pm. Sandeep had come along with his team to participate in a match which was supposed to start in the evening.

   It is learnt that when Sandeep came out of the tournament site, unidentified assailants opened fire on him, leaving him dead on the spot. A teenage boy was also injured but he is out of danger.

   SSP (Rural) Jalandhar Satinder Singh reached the spot soon after the incident. A personal rivalry or professional jealousy could be the reason behind the incident, police said. …

   Sources in the Kabaddi sector said that there is lot of money in the sport, with several gangsters also involved in it, who dictate players on which team they should play for.

   “A murder case against unidentified persons has been registered. People in the area are in a state of shock and panic after the incident,” said Station House officer (SHO) Inspector Parminder Singh of Nakodar Sadar police station. [>

   An article in The Tribune, Main conspirators in Kabbadi player Sandeep Nangal Ambia murder in police net, 28 June 2022, that stated in part:

   The Punjab Police have arrested five more persons including two shooters in connection with the high-profile murder case of international kabaddi player Sandeep Singh, alias Sandeep Nangal Ambia, taking the total to nine, said Senior Superintendent of Police, Jalandhar-Rural, Swapan Sharma, here on Sunday.  …

   The SSP said Harwinder alias Fauji, who was nabbed from a village near Bulandshahr in UP was the main coordinator in this killing, who also provided logistics support including providing weapons to sharpshooters, getaway vehicles, safe houses, training in weapon handling, financial support and organizing recce for the execution of crime. [ information

6. The Department of Foreign Affairs and Trade report India December 2020 discusses Sikhs in India, including Punjab, and states in part:

   Sikhs
   3.62 India has a Sikh population of 20.8 million people (2011 census). The growth rate of Sikhism declined since the 2001 census. Sikhism is the dominant religion in the state of Punjab (approximately 16 million people) with significant populations in Haryana (1.2 million), Delhi NCR (570,581), Rajasthan (872,930), Uttar Pradesh (643,500) and Uttarakhand (295,530).
   3.63 India’s Sikh population has suffered from issues surrounding recognition. The constitution groups Sikhs, Buddhists and Jains with Hinduism; therefore they are not legally recognised as distinct religions.
   3.64 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 the 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.
   3.65 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 following, 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.
   3.66 NGOs report communal violence disproportionately affects India’s religious minorities, in particular Muslims, but also Christians and Sikhs, who face varying degrees of socio-economic, cultural and legal discrimination. Reports of minor cases of violence against Sikhs occur. Media sources have reported isolated incidents involving Sikhs and the police in recent years:
   - After a road accident in Mukherjee Nagar Delhi, in July 2019, an argument broke out between a Sikh ‘tempo’ driver and police, during which police beat the driver. After an inquiry, the police involved were dismissed from duty for ‘unprovoked, indiscreet and highly unprofessional’ behaviour.
   - A 2018 article by Punjab-based Sikh Siyasat News (SSN) reported a mob attack in Karnataka injured a Sikh man and led to six arrests. The police report indicated the man was mistaken by the mob to be a ‘child lifter’ and the villagers, ‘unaware of [its] significance,’ mistook his kirpan (small sword used as an article of faith in Sikhism) as a weapon.
   - Another 2018 SSN article indicates a family reportedly attacked in Haryana detailed police inaction on their case, and the police threatened to charge the family instead.
   3.67 According to information cited by the Immigration and Refugee Board of Canada (IRB), since the late 1980s, Sikhs living outside Punjab mostly do so safely and integrate economically and socially into their communities. IRB notes while there can be localised discrimination, for example blocking entry to public areas or requiring the removal of articles of faith (turbans or kirpans) before sitting examination in educational programs, such issues are adequately addressed by local courts or police. Sikhs may face difficulties integrating in areas where a Sikh community does not already exist, and may face discriminatory
   treatment from law enforcement and government officials for wearing the kirpan.
   3.68 DFAT assesses Sikhs in India generally face a low level of official and societal discrimination and violence.

7. A June 2018 IRBC report[4] which provides information on issues that Sikhs may face in Punjab. The report, India: Treatment of political activists and members of opposition parties in Punjab; treatment of perceived supporters of Sikh militancy by authorities (2017-April 2018), 14 June 2018, states in part:

   2. Treatment of Political Activists and Members of Political Parties

   In correspondence with the Research Directorate, a representative of the Centre for Public Affairs (CPA), a Noida-based research centre on public policies [1], indicated that any party that accepts the Indian constitution and the unity of the country "has full rights to organize rallies, conferences, meetings and seminars to express its views and political opinions, howsoever critical it is of the government and of the ruling party" (CPA 7 May 2018). In other correspondence with the Research Directorate, a representative of the World Sikh Organization of Canada indicated that while the proponents of the SAD and of the BJP do not face "significant oppression or persecution," there have been some clashes between SAD and Congress members in which some "allegations of political favouritism have been made" (World Sikh Organization of Canada 14 May 2018).  …

   3. Treatment of Hindu Political and Religious Activists, Including Targeted Killings

   FirstPost indicates that the "state of Punjab has been plagued by a series of political killings" since January 2016, "many of which remain unexplained and unsolved" (FirstPost 6 Nov. 2017). The same source explains that 10 attacks have claimed the lives of 15 members of non-Sikh religious groups (FirstPost 6 Nov. 2017). The Hindustan Times reports that nine murders of "right-wing, religious leaders" took place during that same period (Hindustan Times 7 Nov. 2017). Both sources explain that the modus operandi were similar in all the cases of killings: assailants on motorcycles shooting at targets from close range (FirstPost 6 Nov. 2017; Hindustan Times 7 Nov. 2017). FirstPost further explains that, according to Punjab's Director General of Police (DGP), Suresh Arora, assailants used "32 bore or nine-millimetre pistols, wore similar headgear, shot at the target from close proximity, brandished the gun in the air to instil fear and sped away on motorcycles" (FirstPost 6 Nov. 2017).  …

   [4] [>

   As discussed at hearing, a June 2020 IRBC report,[5] India: The Shiromani Akali Dal (Amritsar) (SAD(A)) [Shiromani Akali Dal (Mann); SAD(M); SAD(Amritsar); Shiromani Akali Dal (Amritsar) (Simranjit Singh Mann)], including origin, structure, leadership, objectives, and activities; requirements and procedures to become a member of the party, including membership cards; treatment of party members and supporters by authorities (2017–June 2020), discusses the Shiromani Akali Dal (Amritsar) party. It states in part:

   In a telephone interview with the Research Directorate, an associate professor of political science at Hiram College in Ohio, who has conducted research on Sikh politics including the Shiromani Akali Dal (SAD), indicated that the SAD was the main political party of the Sikh community in the State of Punjab, which began to divide into separate factions in the 1960s and 1970s (Associate Professor 5 May 2020). The Associate Professor stated that the SAD(A) began as a faction of the SAD in 1984 after Operation Blue Star (Associate Professor 5 May 2020). The same source indicates that the party was known as Akali Dal Mann from 1988 to 1994, when its name was changed to Akali Dal Amritsar (Associate Professor 5 May 2020). Sources indicate that both names, Akali Dal Amritsar and Akali Dal Mann, are used interchangeably (Associate Professor 5 May 2020; WSO 20 May 2020). The Election Commission of India indicates that the SAD(A) was registered as Shiromani Akali Dal (Amritsar) (Simranjit Singh Mann) for the election of 2019 (India 11 Oct. 2019, 10). …

   The Associate Professor indicated that as of May 2020, SAD(A) is a "somewhat marginal" Sikh political party (Associate Professor 5 May 2020). The Hindustan Times article about Mann states that public support for Khalistan has faded (Hindustan Times 1 Jan. 2017). Sources report that Mann ran as a candidate in the Sangrur district in Punjab in the 2019 general election (Zee News 18 May 2019; Sikh Siyasat News 23 May 2019). According to the Election Commission of India, two candidates unsuccessfully ran for SAD(A) in the general election of 2019 (India 11 Oct. 2019, 10).  …

   The Associate Professor indicated that the SAD(A) participates in local, state-level and national parliamentary elections in Punjab (Associate Professor 5 May 2020). The same source stated that SAD(A) also holds pro-Khalistan rallies critical of the Indian government, generally on Sikh holidays or on the birth or death anniversaries of Sikh militants of the 1980s, mostly in Punjab and sometimes in New Delhi (Associate Professor 5 May 2020). Similarly, the Legal Counsel stated that SAD(A) members engage in activism, which includes participating in religious and political events and protests, as well as advocating for and attempting to garner support for Khalistan (WSO 20 May 2020). The Associate Professor noted that SAD(A) often works with other pro-Khalistan Sikh organizations (Associate Professor 5 May 2020). The same source further indicated that SAD(A) does not participate in violent activities, while also stating that there have been local-level clashes between supporters of SAD(A) and members of mainstream Indian political parties, including the Indian National Congress (Congress Party) and the ruling Bharatiya Janata Party (BJP), as well as between SAD(A) and the moderate SAD factions (Associate Professor 5 May 2020).  …

   The Legal Counsel stated that individuals who support or advocate for Khalistan are monitored, "often included on police lists for heightened scrutiny," and "often" charged in terrorism-related cases, which can result in being detained for years before being released due to lack of evidence (WSO 20 May 2020). Sources indicate that three Sikhs associated with Babbar Khalsa [Babbar Khalsa International (BKI)], [a "terrorist" organization (Hindustan Times 8 Feb. 2019)], were convicted and sentenced to life in prison for "waging war against the state" for possessing pro-Khalistan books (Hindustan Times 8 Feb. 2019; Sikh Siyasat News 6 Feb. 2019). The Hindustan Times quotes member of parliament Dharamvira Gandhi as stating that "'[w]hen no weapon was found from possession of the three and no criminal offence was committed by them, construing possession of literature as waging war against the state is suppression of freedom of expression'" (Hindustan Times 8 Feb. 2019).

   [5] [>

   Despite difficulties in relocating interstate in India, as discussed at hearing country information shows that relocation within India is feasible. A January 2006 IRBC report which provides information on issues that Sikhs may face in relation to language, housing, residence, employment, health care, and education. Although this assessment was made in early 2006, various subsequent reports by different government agencies continue to refer to this report, and country information does not indicate any major changes since that report. The report India: Ability of Sikhs to relocate within India; issues to be considered when relocating; safety concerns; treatment by authorities (March 2005 - December 2005), 18 January 2006, states in part:

   Although the majority of Sikhs in India reside in Punjab state (Specialist on Indian Affairs 23 Nov. 2005; PUCL 30 Oct. 2005; Lawyer 27 Oct. 2005; Laws and Iacopino 2002, 195; BBC 16 Mar. 2005), there are many Sikh communities in India located outside of Punjab state (Specialist on Indian Affairs 23 Nov. 2005; Professor of Asian Studies 14 Nov. 2005; ENSAAF 3 Oct. 2005; Associate Professor of Social and Cultural Anthropology 3 Nov. 2005; PUCL 30 Oct. 2005; Lawyer 27 Oct. 2005; MAR n.d.a; WSO n.d.). 

   In correspondence to the Research Directorate, a specialist in Indian affairs reported that Sikhs are located in every state in India, and in 579 districts out of a total of 593 districts (23 Nov. 2005).  After Punjab state, the next greatest numbers of Sikhs reside in northern Haryana state (1,170,662 persons), northern Rajasthan state (818,420 persons), north central Uttar Pradesh state (678,059 persons), northern Delhi union territory (555,602 persons), northern Jammu and Kashmir state (207,154), central Maharashtra state (215,837 persons), north central Uttaranchal state (212, 025 persons) and central Madhya Pradesh state (150,772 persons) (ibid.).  Statistics on the Sikh population in India received by the Research Directorate from the World Sikh Organization (WSO), which are drawn from the results of the 2001 Indian census, corroborate the information that most Sikhs live in the states cited above by the specialist in Indian affairs, though the numbers of Sikhs reported by WSO are slightly lower in each state, except for Jammu and Kashmir state, in which the number of Sikhs is considerably higher at 500,000 people (WSO n.d.).  Minorities at Risk, a University of Maryland research project that monitors and analyzes ethnic conflict worldwide (MAR n.d.b), also indicates the presence of Sikhs in the capital Delhi, as do news articles (MAR n.d.a; PTI 27 Aug. 2004; BBC 16 Mar. 2005).  A professor of Asian studies, with extensive experience in India, commented in a telephone interview with the Research Directorate that Sikh communities are "doing quite well" in various states in India and that they consider these places their home (14 Nov. 2005).

   Citizens are not required to register their faith in India (Country Reports 2003 25 Feb. 2004, Sec. 2c).  Several oral sources consulted for this response commented that Sikhs are able to practise their religion without restriction in every state of India (Specialist on Indian Affairs 23 Nov. 2005; PUCL 30 Oct. 2005; Lawyer 27 Oct. 2005; VFF 23 Oct. 2005).  The central Indian government recognizes Sikhs as one of five religious minority groups and as such, Sikhs are provided access to "various Constitutional guarantees" for the protection of the rights of religious minorities (UN 3 Nov. 2005). …

   Feasibility of Safe Relocation within India

   The Indian Constitution allows for freedom of movement of citizens, which, according to Country Reports 2004, was generally respected in practice in 2004 (Country Reports 2004 25 Feb. 2003, Sec. 2d).  According to the human rights activist referred to above, "[t]heoretically, Sikhs can, like others, move and relocate themselves in any part of India that does not come under excluded or restricted zones like some parts in the northeast of India" (Human Rights Activist 24 May 2005).  This information was corroborated by the UK Immigration and Nationality Directorate, which stated in September 2005 that "there exists the option for those who encounter difficulties to seek national protection or to relocate internally ... " (Art. 3.8.8).  However, the same report also concluded that "for single women who do not relocate as part of a family unit relocation may be difficult and unduly harsh" (UK Sept. 2005, Art. 3.8.6).  In addition, "[for Sikhs] fearing ill-treatment/persecution by the state authorities relocation to a different area of the country to escape this threat is not feasible" (ibid., Art. 3.7.8).  Similarly, ENSAAF, a California-based non-profit organization that "fights impunity for human rights abuses in India", stated in a letter entitled "No Safe Haven: The Myth of the Internal Flight Alternative in India for Returned Sikh Asylum Seekers," written on 24 January 2005, that

   Sikh survivors of human rights abuse cannot live safely or securely in any part of India ... [due to] ... government protection for perpetrators of human rights abuses in Punjab and India; the perception of a revival of militancy in Punjab; the continuation of abuses perpetrated by security forces in India; and the ability and willingness of security and intelligence agencies to track down Sikhs who have relocated to other parts of India, outside of Punjab (1).

   This letter can be accessed at , although it should be noted that most of the information contained in the letter is based on incidents that occurred in the 1990s (ENSAAF 24 Jan. 2005).

   In contrast, the UK Immigration and Nationality Directorate stated in September 2005 that " ... where the fear is of local police and the individual is not of interest to the central [Indian] authorities internal relocation is feasible and not unduly harsh" (UK Sept. 2005, Art. 3.7.8). 

   Police Treatment of Relocated Sikhs

   Article 48 of the Indian Code of Criminal Procedure reads as follows: "A police officer may, for the purpose of arresting without warrant any person whom he is authorized to arrest, pursue such person into any place in India" (India 25 Jan. 1974).  The Central Reserve Police Force, a paramilitary force of India (AHRC 25 Jan. 2005), may be summoned to any state of India to help "maintain law and order and contain insurgency," as well as "various police duties," such as crowd control and protection of officials (India n.d.b).  No information could be found on cooperation between Indian state police forces to apprehend wanted individuals among the sources consulted by the Research Directorate.

   This power of police officers notwithstanding, a professor of Asian studies commented that in pursuing a wanted individual, it is unlikely that the central Indian authorities will attempt to locate the person in another state, and that this is the case with Sikhs (14 Nov. 2005).

   This professor added that such pursuits have more to do with the profile of the individual than with the faith the individual subscribes to (ibid.).  The human rights activist referred to above informed the Research Directorate that he was not aware of any police sweeps or searches of Sikhs in India on the basis of their religion (24 May 2005). 

   This human rights activist also noted that "persons without sufficient financial means and social clout would mainly be the victims [of suspicions]" (Human Rights Activist 24 May 2005).  Similarly, geographer Craig Jeffrey concluded in his study on networks of the citizenry and the police in India that those persons with relatives in the police force are able to "perpetuat[e] their economic and social advantage" (Jeffrey 2000, 1013). 

   Documentation Issues at New Place of Residence

   According to ENSAAF, Sikhs who have relocated to other areas in India could attract the attention of the authorities through their applications for documentation such as ration cards (ENSAAF 24 Jan. 2005, 17).  ENSAAF explained that

   [t]hose who utilize state resources ... come to the attention of local security forces.  For example, to apply for a ration card, entitling the owner to subsidized prices for foods, kerosene and other materials, one has to cancel any previous card obtained at another address by informing the Directorate of Food and Civil Supply. ... Local authorities may verify whether the former ration card has been cancelled (ibid., 17-18).

   Further information on documentation issues for Sikhs in areas of India outside of Punjab state could not be found among the sources consulted by the Research Directorate.

   Language Issues at New Place of Residence

   The official language of India is Hindi and is spoken by approximately thirty per cent of the population as a first language (UK Apr. 2003, 2.4).  The Sikh language is Punjabi (Minahan 1996, 299), which closely resembles Hindi (ibid.; UK Apr. 2003, 2.4).  Punjabi is also spoken by Hindus and Muslims living in Punjab state (MAR n.d.b). 

   In addition to Hindi and Punjabi, there are another 42 languages, 720 dialects and 23 tribal languages spoken in India (UK Apr. 2003, 2.4).

   Opinion differs on whether Sikhs would be linguistically understood in states of India other than Punjab.  While some sources indicate most Sikhs would be understood in all other states (Lawyer 27 Oct. 2005) since they would be able to understand Hindi, Urdu (Specialist on Indian Affairs 23 Nov. 2005) or English (Professor of Asian Studies 14 Nov. 2005), others contend that Sikhs would be understood only in certain areas of India (Associate Professor of Social and Cultural Anthropology 3 Nov. 2005; ENSAAF 29 Oct. 2005).  According to the general secretary of the Delhi-based People's Union for Civil Liberties, if the individual in question speaks only Punjabi then he or she would be understood only in the northern and eastern parts of India (PUCL 30 Oct. 2005).  Otherwise this individual would have to learn the local language (Professor of Asian Studies 14 Nov. 2005; ENSAAF 29 Oct. 2005).

   Housing Issues at New Place of Residence

   Two sources indicated that the main factor limiting access to housing in India is the financial situation, rather than the religion, of an individual (Specialist on Indian Affairs 23 Nov. 2005; Associate Professor of Social and Cultural Anthropology 3 Nov. 2005).  Therefore, to whatever extent they can afford it, Sikhs have unlimited access to housing in localities outside of Punjab state (Professor of Asian Studies 14 Nov. 2005; PUCL 30 Oct. 2005; Lawyer 27 Oct. 2005).  A specialist in Indian affairs explained that

   [t]he greatest discrimination in housing experienced by religious minorities is faced by the Muslim population, not the Sikh population. ... Housing for those in middle classes and above is often organized by "societies" which are essentially housing co-ops, or buildings rented or sold to members of a single community.  Since Hindu "societies" form the vast majority of these housing projects, it is instructive to note that usually Hindu housing societies will accept sales/rentals to Jains, Christians, Parsis, and Sikhs, but will not allow Muslim families to rent or buy flats or apartments.  There may be isolated instances of discrimination against Sikhs in terms of housing, but [it] is certainly not a common occurrence ... . (Specialist on Indian Affairs 23 Nov. 2005).

   In 12 January 2006 correspondence to the Research Directorate, a representative of WSO explained that according to state laws, citizens may buy agricultural land only in their state of residence, except for Punjab state, where Indian citizens residing in any Indian state may purchase agricultural land.  This representative continued that "the application of [this law] is mainly used against Sikhs and other religious minorities" (WSO 12 Jan. 2006).  Further information on this issue could not be found among the sources consulted by the Research Directorate.

   Residence Registration at New Place of Residence

   Sikhs relocating from Punjab state to other parts of India do not have to register with the police in their area of relocation (ibid.; PUCL 30 Oct. 2005; Lawyer 27 Oct. 2005; Human Rights Activist 24 May 2005), unless they are on parole (Associate Professor of Social and Cultural Anthropology 3 Nov. 2005).  One 2005 media report stated that Delhi police required landlords to furnish information about their tenants as part of a tenant verification drive in the city (The Tribune 27 July 2005).

   Employment Issues at New Place of Residence

   Upon relocation to an area in India outside of Punjab state, several sources commented Sikhs would have indiscriminate access to employment (Professor of Asian Studies 14 Nov. 2005; PUCL 30 Oct. 2005; Lawyer 27 Oct. 2005), although this would depend on their skills level (Associate Professor of Social and Cultural Anthropology 3 Nov. 2005).  A specialist in Indian affairs commented that although Sikhs are employed in the government, the police, universities, government corporations and the business community, "there may be isolated instances where an individual feels discriminated against [in searching for employment], and in local communities there are tendencies for firms to employ locally-born and educated people" (Specialist on Indian Affairs 23 Nov. 2005).

   Health Care Issues at New Place of Residence

   Several sources indicate that Sikhs would have indiscriminate access to health care in states outside of Punjab (Professor of Asian Studies 14 Nov. 2005; Lawyer 27 Oct. 2005; VFF 23 Oct. 2005), though access depends mainly on the financial situation of the individual (Associate Professor of Social and Cultural Anthropology 3 Nov. 2005; Professor of Asian Studies 14 Nov. 2005; WSO 5 Jan. 2006; Specialist on Indian Affairs 23 Nov. 2005) and the proximity of the individual's residence to an urban location (ibid.).  The specialist on Indian affairs explained that

   [i]n India access to health care depends on income.  All health care is privately accessed.  One can attend a government hospital for free medical consultation and surgical procedures but the waiting times are long and attention in many places [is] inadequate.  In almost every government hospital patients have to pay for the cost of drugs, surgical dressings, and provide food to family members in hospital.  As a result, those who can afford it obtain private health care. ... [T]he primary obstacle to obtaining good health care is lack of income and the remoteness of many rural communities from good hospital facilities (Specialist on Indian Affairs 23 Nov. 2005).

   Education Issues at New Place of Residence

   Two sources indicate that Sikhs would have access to education in Indian states outside of Punjab upon relocation (PUCL 30 Oct. 2005; Lawyer 27 Oct. 2005), though Sikhs are not eligible for any affirmative action programs related to education (Specialist on Indian Affairs 23 Nov. 2005).  Poverty is the main obstacle to accessing education in India (ibid.; WSO 5 Jan. 2006); in addition, the proximity of the individual's residence to an urban area has an effect on the availability of education since elementary schools in rural areas are "inadequate" (Specialist on Indian Affairs 23 Nov. 2005). 

   Assessment of claims: credibility, findings

1. The applicant claims to be a national of India. I sighted copies of his expired Indian passport. All the available evidence, including the applicant’s oral evidence and familiarity with India, supports his claim to be an India national. India is therefore the country of reference for the purpose of assessing the applicant’s protection claims, and the receiving country when assessing his claims against the complementary protection grounds. Having considered the material before the Tribunal including the applicant’s evidence given at the hearing, I accept he has the identity claimed.

2. I accept the applicant is a Sikh. At hearing he stated he attends the Temple and attends Sikh celebrations. He has Sikh friends and he socialises with them. However, as discussed at hearing, country information shows Sikhs live safely throughout India including Punjab. The DFAT report India December 2020 states that ‘DFAT assesses Sikhs in India generally face a low level of official and societal discrimination and violence’. I do not accept that being a Sikh who is active in promoting Sikh issues would lead the applicant to face a real chance of serious harm in Punjab.

3. I accept he has been a supporter/member of the Shiromani Akali Dal (Amritsar) party both in India and in Australia, and he has been involved with the [Organisation 1]. His support of the party is supported by the letter of [July] 2013 from [Mr A], [Official 2] Shiromani Akali Dal (A), and the letter of [April] 2013 from [Mr B] of [Organisation 1]. However, in light of his evidence and country information, as I discussed at hearing, the letters appear to make exaggerated claims about his safety in India, which I do not accept. As discussed at hearing country information shows these are legal organisations in India, and the Shiromani Akali Dal (A) party contests elections legitimately. As a foregoing report states, “a representative of the Centre for Public Affairs (CPA), a Noida-based research centre on public policies, indicated that any party that accepts the Indian constitution and the unity of the country "has full rights to organize rallies, conferences, meetings and seminars to express its views and political opinions, howsoever critical it is of the government and of the ruling party" (CPA 7 May 2018)”. In sum, I do not accept that being a Sikh who supports and is active in these organisations would lead the applicant to face a real chance of serious harm in Punjab.

   His activities in India

4. At my hearing I discussed the applicant’s actual activities in India and in particular during his two return trips December 2010 to February 2011, and April to September 2011.

5. As discussed at hearing, the applicant had not been a party official in India. He claims that the time he came to the attention of the police had been when he campaigned in an election in Punjab around 2011-2012; this had involved door-knocking for the party; he did nothing else. He claims this led to the police talking to him and telling him to remain quiet; after that he continued living there for two months and then travelled to Australia. He did not claim, despite ample opportunity, that he faced any other adverse occurrences. 

6. The applicant was in India between April and September 2011. Country information shows that the 2012 Punjab legislative assembly election was held on 30 January 2012, and the ruling Shiromani Akali Dal- Bharatiya Janata Party alliance won the elections. The country information supports his claim, and I accept that the applicant was in Punjab in mid to late 2011 at the time an election campaign was underway. I accept that as a Shiromani Akali Dal (A) member the applicant may well have door-knocked on behalf of the party during an election campaign in Punjab. I cannot discount the possibility that this upset some locals who supported other (main) parties, and that this led to the local police questioning the applicant. However, the applicant’s campaigning by door-knocking was usual in an election campaign and legal, he did not commit an offence and he was not charged with any offences, and he remained in India for weeks after the occurrence without anything happening to him. He was not harmed at any time and he departed India legally and in the usual way.

7. The delegate’s decision[6] shows he claimed to have been questioned (not arrested or tortured) by police in December 2011 when he was performing polling agent duties during elections for Sikh Temples. When the delegate pointed out he was not in India in December 2011, he then said this happened in December 2010. At Tribunal 1’s hearing he merely spoke of doing many things in India which caused the police to warn him. At my hearing he did not mention, despite ample opportunity, being spoken to by the police in December 2010 when performing polling agent duties during elections for Sikh Temples. The delegate’s decision[7] shows he also claimed to have assisted the [Organisation 1] in Punjab in 2011, although nothing adverse had happened to him. At Tribunal 1’s hearing he merely spoke of doing many things in India which caused the police to warn him. At my hearing he did not mention, despite ample opportunity, of assisting the [Organisation 1] in Punjab in 2011 and how this caused him to fear the authorities.

   [6] At page 9, provided by the applicant to the Tribunal

   [7] At page 9-10, provided by the applicant to the Tribunal

8. In sum, in light of his changeable account of the police questioning and his evidence at my hearing that this occurred during a 2011-2012 election campaign when he was merely door-knocking, I do not accept that he was questioned by the police in December 2010 about polling agent duties during elections for Sikh Temples. I do not accept that [in] December 2010 he was arrested during the election of the Shromini Gurdwara Prabandhak Committee.

9. As well, I do not accept that any assistance he gave the [Organisation 1] in Punjab in 2011 was significant or led to him coming to the adverse attention of the Indian authorities at the time or subsequently.

10. In sum, I find that his religion, political opinion, party membership and activities in India did not cause him harm and did not attract the ongoing concern of the Indian authorities.

    His activities in Australia

11. I accept that the applicant continued his party activities in Australia. At hearing he stated this involved him attending rallies and meetings. He stated the rallies were at the Temple and they involved discussions; the last one he attended had been in 2021. However, as discussed, such activities are legal in Australia and India. I do not accept that being a Sikh who supports and is active in party activities and pro-Sikh activities would lead the applicant to face a real chance of serious harm in Punjab.

12. In the application and in Tribunal 1’s review, the applicant claimed to have undertaken other activities that may have brought him to the adverse attention of the Indian authorities.

13. In the application he claimed to have sponsored and contributed some money towards two [books]. The books were not published and had been available online, and he had assisted people who put information on a website in 2012. In Tribunal 1’s review he said he had worked with others collecting information about the plight of the Sikh people in India. This publication was available electronically on the internet although later blocked by the Indian authorities. The applicant’s email account used to monitor the distribution of the book in India had been hacked and was no longer in operation or accessible, and so he had been unable to provide evidence of his involvement in the publication and its claimed distribution. In sum, I cannot discount the possibility that the applicant contributed some money and encouragement towards an online publication of material concerning [details deleted]. However, his claimed assistance was minor, and I find it improbable that his minor assistance would have brought him to the adverse attention of the Indian authorities.

14. In the application he claimed to have contributed some money towards production of a film, [name deleted], that was banned in Punjab State. The delegate’s decision notes the ban on the film was lifted [in] 2013. In sum, I cannot discount the possibility that the applicant contributed some money towards production of a film that for a time was banned in India. However, his claimed contribution was minor, and I find it improbable that it would have brought him to the adverse attention of the Indian authorities.

15. In the application and at Tribunal 1’s hearing, the applicant ostensibly collated claims. In the application he claimed in January 2014 a [social media] friend turned police informer, which led to members being arrested. The applicant had been named as an active member living outside of India. At interview[8] he stated: he had communicated with an Indian police informant posing as a Sikh on [social media] in December 2013; he stopped using [social media] for a while but had reactivated his account. [In] December 2013 police raided the family home, but no occupants were home; neighbours said the police were inquiring about his whereabouts.

    [8] Discussed at page 7-8 of the delegate’s decision, provided by the applicant to the Tribunal

16. In Tribunal 1’s review he claimed his former wife’s family disapproved of his political activities and they caused him problems with his relationship with his wife and this eventually led to his marriage failing. His wife’s father had reported him and his activities to the authorities in 2013 and again, in 2016 when there was a religious book burning in India which according to the authorities had been organised by persons living in Australia. The authorities had asked the applicant’s father about the applicant’s whereabouts. At Tribunal 1’s hearing he discussed legal proceedings against him concerning a dowry dispute and wife abandonment, and he produced court documents and an affidavit from his father about this. He stated he had not in recent times involved himself in any political activities via social media or [social media].

17. At my hearing when I asked him whether he could show me any [social media] posts of a political nature. He searched his mobile for some time without result.

18. In sum, I accept that the applicant may have at times donated money to Sikhs and to the party in Australia and in India. I accept that he may have at times posted on social media including [social media] about his donations, party support and about Sikh issues. However, I find it improbable that he had [social media] discussions with a police informant that then caused him to come to the adverse attention of the Indian authorities, or that led to the police visiting his father. His donations, party support and discussion of Sikh issues on [social media] are legal and- as described by the applicant- do not show criminal activity or intent. I do not accept these actions would have brought him to the adverse attention of authorities in India.

19. I find it implausible that the police investigated the applicant because the ex-wife’s family reported the applicant to the police in 2016 for a religious book burning that had occurred in India, in light of his distant residence in Australia since September 2011.

20. At my hearing his divorce was discussed. He has now been divorced for over five and a half years. I cannot discount the possibility that the ex-wife’s family went to the police in 2013 concerning a dowry dispute and wife abandonment, and this led to the police asking about him. Nonetheless, a police visit even if it occurred, is now nine years in the past and distant in time. As well, the court documents show the ex-wife’s family then took the matter to court to resolve their issues. At my hearing he did not say whether the court proceedings are ongoing or now resolved. He did not claim, despite ample opportunity, that he feared harm from the family of his ex-wife. I do not accept that he faces harm in India from the ex-wife’s family, the police, or any agents because of the divorce and legal proceedings, whether or not they are unresolved.

21. In Tribunal 1’s review he claimed the party [Official 1], [visited] Australia and told the applicant that the applicant’s name still appeared in local police records; the authorities knew that he was collecting money at Sikh temples in Australia and sending those funds to India to assist Sikh families in distress. However, collecting money at Sikh temples in Australia and sending those funds to India to assist Sikh families in distress is entirely legal and I do not accept would cause the applicant to come to the adverse attention of the Indian authorities. As well, the applicant’s evidence has been that: the police questioned him in 2011 about his election campaigning but nothing came of that questioning; and they asked after him in 2013 and 2016. I cannot discount the possibility that he was questioned in 2011 about his election campaigning, and that the ex-wife’s family went to the police in 2013 concerning a dowry dispute and wife abandonment, and this led to the police asking about him. I do not accept that he was investigated in 2016 concerning a book burning. Nonetheless, the applicant’s account of the police questioning in 2011 shows it was not significant, it followed his legal campaigning for the party, and did not lead to him being harmed and did not lead to any further police action. The sole police visit claimed in 2013 did not lead to any further police action, and the ex-wife’s family then took the matter to court to resolve their issues. In this light I find it implausible that the party [Official 1] became aware that the applicant’s name ‘still appeared’ in local police records, and then informed the applicant when visiting Australia.

22. At my hearing the applicant discussed how he had in the past lived for a few months with a friend, and he financially assisted the friend with $400-500. He said the friend was wrongly accused of murder in India but at a time when the friend was in Australia. The applicant claimed this friendship may bring the applicant to the authorities’ attention in India. After the hearing he provided links to 2018 Indian charge sheets concerning Sikhs accused of murders connected with the Khalistan Liberation Force (KLF). However, as discussed at hearing, it is improbable that the applicant’s friendship with the friend in Australia would be known to the Indian authorities or was of such consequence that it would bring the applicant to the adverse attention of the Indian authorities. As well, the applicant does not claim to be involved with the KLF at all, or involved in criminal or terrorist activities in India.

23. At my hearing the applicant discussed how high profile Sikh activists had been murdered in recent years, and he listed Sandeep Singh Sidhu, Subhamdeep Singh Sidhu, and Sandeep Singh Nangal. He asked me to research the deaths online. A selection of articles online show the following:

    ·Sandeep Singh Sidhu. Died in a road accident. He was travelling along with his friend, Reena Roy. Prima facie it was a case of an accident, said the police. … A truck driver suddenly pushed the break and the SUV rammed into the rear side of the truck.

    ·Subhamdeep Singh Sidhu. Indian police are investigating the murder of a popular Punjabi rapper a day after he was fatally shot. … Punjab state’s top police official VK Bhawra said the initial investigation had revealed the killing to be the result of an inter-gang rivalry. … The rapper joined India’s Congress party last year and unsuccessfully ran in the state’s assembly elections.

    ·Sandeep Singh Nangal. The Punjab Police have arrested five more persons including two shooters in connection with the high-profile murder case of international kabaddi player Sandeep Singh, alias Sandeep Nangal Ambia, taking the total to nine…

24. As discussed at hearing, the people he listed are high profile: a Bollywood actor, a popular Punjabi rapper, and an international kabaddi player. The reports show that while some people were suspicious of the deaths, Sandeep Singh Sidhu died in a road accident, police had reported that Subhamdeep Singh Sidhu- a Congress party activist- was killed as a result of an inter-gang rivalry, and police had arrested many people in relation to Sandeep Singh Nangal’s murder. The suspicions that the authorities had been involved in their deaths appears to be a conspiracy theory. Regardless, as discussed at hearing the applicant does not have their public profile and I would consider the applicant’s particular circumstances in my decision.

25. Country information shows that political violence as well as violent crimes occur in Punjab and India. A foregoing report states that “The same source further indicated that SAD(A) does not participate in violent activities, while also stating that there have been local-level clashes between supporters of SAD(A) and members of mainstream Indian political parties, including the Indian National Congress (Congress Party) and the ruling Bharatiya Janata Party (BJP), as well as between SAD(A) and the moderate SAD factions (Associate Professor 5 May 2020).” A foregoing report states that “the "state of Punjab has been plagued by a series of political killings" since January 2016, "many of which remain unexplained and unsolved" (FirstPost 6 Nov. 2017)” and then discusses attacks against members of non-Sikh religious group and murders of "right-wing, religious leaders".

26. I acknowledge there is a level of political violence in Punjab and this has led at times to political killings and in particular killings of members of non-Sikh religious group and "right-wing, religious leaders". However, I find that the applicant’s political opinion, political and social activities, membership and support of the Shiromani Akali Dal (A), donations to Sikhs and Sikh causes, and friendships with other Sikhs as I have discussed, have not given him any profile that would attract the ongoing adverse attention of the Indian authorities. I do not accept that any of the applicant’s activities in Australia, which are of a minor nature and legal, would be known to the Indian authorities and/or would bring him to the adverse attention of the Indian authorities.

    Conclusion

27. At my hearing the applicant spoke in general terms of killings in Punjab state involving Sikhs, and in particular he spoke of several high profile Sikhs being killed in suspicious circumstances. At hearing I indicated that the DFAT report India December 2020 broadly assesses that Sikhs in India generally face a low level of official and societal discrimination and violence. I indicated that I would assess whether he would face a real chance of serious harm in his home area of Punjab in light of his particular circumstances and profile.

28. As discussed at hearing, the applicant departed India legally on a genuine Indian passport, and as an Indian national he would be able to get a new passport. He would be able to return to and enter India, without difficulties. He has not committed crimes in India and the Indian authorities would be unaware of his activities, which are minor in nature, in Australia. As discussed at hearing, the DFAT report India December 2020 shows that returnees including failed asylum seekers do not face mistreatment on returning to India. My comments were based on the report that stated in part:

    5.39 DFAT is not aware of any evidence of mistreatment of returnees, including failed asylum seekers, by Indian authorities. India does not have a centralised registration system in place to enable the police to check the whereabouts of inhabitants in their own state, let alone in any of the other states or union territories. The Department of Home Affairs is required to notify Indian authorities prior to the arrival of escorted removals from Australia but does not track returnees after their arrival in India. Home Affairs does not routinely notify Indian authorities of unescorted returns and removals. UK Home Office reporting notes tracking and surveillance systems appear limited.

1. In sum, I do not accept that any of the applicant’s claims that I accept, would lead him to face a real chance of serious harm in his home area in Punjab, India, now and in the reasonably foreseeable future. 

2. I find that if he returns to Punjab, India, he would do no more in his religion and in his support of Sikh issues and the Shiromani Akali Dal (Amritsar) party than he has done in Australia- all of which has been legal. I do not accept that his Sikh religion, identity and activities, his membership and past and current activities for the Shiromani Akali Dal (Amritsar), his financial and other support of Sikh books and a movie and needy Sikhs in India, his involvement with the [Organisation 1], his social media posts, his friendships and support of Sikhs and Sikh issues, and his friendship with a friend charged with murder in 2018, and any other of his activities, would lead him to face a real chance of serious harm in his home area in Punjab, India, now and in the reasonable foreseeable future.

3. I do not accept that in his home area in Punjab now and in the reasonably foreseeable future he faces harm from: the Indian authorities; the police; other political party activists; or from any other agents or the general community. I find there is not a real chance of serious harm amounting to persecution (or for complementary protection purposes a real risk of significant harm) to him now and in the reasonably foreseeable future in residing in Punjab, India for the reasons he claims, either when considered individually or cumulatively, or for any reason. Accordingly, I have not gone on to consider relocation within India.

   Refugee criterion

4. In light of the above assessment, the Tribunal finds that in India the applicant does not face a real chance of serious harm amounting to persecution now and in the reasonably foreseeable future, for the reasons he claims. The Tribunal finds that in India the applicant does not face a real chance of serious harm amounting to persecution now and in the reasonably foreseeable future, for one or more of the Convention reasons either when looked at individually or cumulatively. The Tribunal finds the applicant does not have a well-founded fear of Convention-related persecution, now and in the reasonably foreseeable future, if he returns to India.

5. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

   Complementary protection

6. I considered whether on the evidence before me, there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that he will suffer significant harm.

7. I accept the applicant may face dislocation when he returns to India, as he has not returned there since 2011. But in light of the foregoing, I consider the applicant will be able to make his way in India from the time he arrives. His father continues to live in a large family home in the home area. At my hearing he said he was well and took no medication. He works [and] has skills he can use to seek and get work in India.  

8. In sum, I find there is no real risk that he will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant, such as to meet the definition of torture; or the definition of cruel or inhuman treatment or punishment; or the definition of degrading treatment or punishment. Nor am I satisfied that there is a real risk that he will suffer arbitrary deprivation of his life or the death penalty. I am not satisfied the applicant will be subject to significant harm for any reason if he is removed/returns to India. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

9. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

   DECISION

10. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    C. Packer
    Member