2008290 (Refugee)

[2022] AATA 3422

2008290 (Refugee) [2022] AATA 3422 (11 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Shephali Sambiah (MARN: 1803450)

CASE NUMBER:  2008290

COUNTRY OF REFERENCE:                   India

MEMBER:Genevieve Hamilton

DATE:11 July 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 11 July 2022 at 11:53am

CATCHWORDS

REFUGEE – protection visa – India – political opinion – Congress Party – religion – Sikh – fear of criminal gang – torture – fear of physical assault – forced recruitment to Akali Dal – state protection – delay in applying for protection – return visits to India – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5H, 5J, 36, 65
Migration Regulations 1994, Schedule 2

CASES

Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33

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

BACKGROUND

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 7 June 2016.  The delegate refused to grant the visa on 24 April 2020.  The applicant was represented in relation to the review.

   Criteria for a protection visa

3. Under s 65(1) of the Act a visa may be granted only if the decision maker is satisfied that the criteria for the visa prescribed in the Act are met.

4. The criteria for a protection visa are relevantly set out in s.36 of the Act.  An applicant must meet one of the alternative criteria in s 36(2). Generally speaking, they must either be a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion (s.36(2)(a)), or on ‘complementary protection’ grounds (s.36(2)(aa)), or be a member of the same family unit as such a person.

   Refugee

5. Refugee is defined in the Act.  A person is a refugee if they are outside the country of their nationality (of if they have no nationality, their country of former habitual residence) and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1). 

6. Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country.

7. The criterion in s 5J(1) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, but also imposes an objective standard, that there be a real chance the person would be persecuted.  A 'real chance' is one that is not remote or insubstantial or a far-fetched possibility: Chan Yee Kin v MIEA (1989) 169 CLR 379.

8. The persecution must involve serious harm such as a threat to the person’s life or liberty or significant physical harassment or ill treatment, significant economic hardship that threatens their capacity to subsist, or denial of access to basic services or capacity to earn a livelihood of any kind, where the denial threatens their capacity to subsist (ss 5J(4) and (5)).

9. A person does not have a well-founded fear of persecution if effective protection measures are available to them in the receiving country (ss 5J(2) and 5LA). 

10. A person does not have a well-founded fear of persecutionif the person could take reasonable steps to modify their behaviour to avoid persecution (s 5J(3), which also gives examples of types of modifications that are not required, such as concealing one’s religion, political opinion, race or sexual orientation). 

11. In determining whether the person has a well-founded fear of persecution, any conduct engaged in by the person in Australia is to be disregarded unless they satisfy the Minister that they engaged in the conduct for a reason other than to strengthen their claim to be a refugee (s 5J(6)).

    Complementary Protection

12. If a person is found not to meet the refugee criterion, they may still be a person to whom Australia has protection obligations if there are substantial grounds to believe that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm.  S 36(2A) defines significant harm as arbitrary deprivation of life, carrying out of the death penalty, torture, or cruel, inhuman or degrading treatment or punishment.  “Real risk” has the same meaning as “real chance”: MIAC v SZQRB [2013] FCAFC 33.

13. Under s 36(2B) Australia does not have complementary protection obligations 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 they will suffer significant harm;

    ·the applicant could obtain protection from an authority of the country, such that there would not be a real risk that the non-citizen will suffer significant harm; or

    ·the risk is one faced by the population of the country generally and not by the applicant personally.

    Mandatory considerations

14. 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

15. In his protection visa application the applicant said he was born in Amritsar and is an Indian  citizen.  He said his marital status was separated [in] July 2015, place Australia).  His religion is Sikh.  He lived in [Village 1], [Subdistrict 1], Amritsar District.  He finished high school in [year]. 

16. The applicant said he was born in [year], in his youth was a committed Sikh and at 19 he was an active member of Congress Party, taking part in all its activities, visiting people in different villages and working on their issues.  He was awarded for his hard work.  On a few Sikhs were members of Congress.  He and other Sikhs were often tortured by the Akali Dal party to leave Congress and join Akali Dal. 

17. During the 2006 election he and other party members were helping people cast their votes, Akali Dal members tried to stop them, started beating them, took them into a car and threw them on the road.  They tried to get help from the police but they did not help.  A few days later Akali Dal came to his house to again ask him to join Akali Dal.  The appclint refused and ordered them to leave, they attacked him and he ran away.  He was in hospital for several days.  A few weeks later they brought police to his house to torture him again.  He was beaten again, his parents decided to hide him and he was sent to a relative’s house.  He found out his family were being tortured and his father was in hospital for a month. 

18. After a few months he went to see his family and was attacked in the middle of the road.  They attempted to kill him but someone got him to hospital and contacted his family.  Two Sikh Congress Party members had been killed in a staged accident.  The applicant’s parents decided to send him abroad.  His parents moved to a different city but Akali Dal are are still torturing them and calling them every day to ask where the applicant is.  If he goes back they will kill him. 

19. The applicant was interviewed by the Delegate on 5 March 2020.  At that point he supplied additional claims and documents.  In an undated statement he said he faced persecution because of his political opinion and because he would face serious harm, torture, inhumane treatment or death if sent back to India.  He has received death threats from individuals related to his wife (now ex-wife) who are gangsters and politically well-connected.  The applicant related that after he married and had children with his ex wife they started having domestic disputes.  [In] July 2015 they went to India with the children.  On arrival in Delhi her cousin [Mr A] who is a well-known gangster and pollical influencer in Punjab, met them at the airport.  He had not been happy about the marriage.  He was a strong supporter of Akali Dal; his connections with Akali are socially overt and published in social media.  The applicant, his father and all his family are Congress supporters.  The applicant and his father were respected public servants in their village, his father being a retired [Occupation 1] and a Senior member of the village Panchayat, the applicant served with [Agency 1].  For this reason [Mr A] had always hinted at them to change their political allegiance.  He was at the airport with 4 to 5 of his gang members at least two of whom were armed.  They ordered him into their vehicle, the applicant refused.  [Mr A] yelled that they were going to kill the applicant and dump his body.  Police were alerted by the commotion and [Mr A] left the scene with the applicant’s ex-wife and children.  The applicant went to his sister’s house in Amritsar the next day alone and told her what had happened.  He tried to contact his ex-wife but his efforts were in vain.  He went to [Mr A]’s parents’ place but they denied him entry and he was abused and assaulted.  They filed a complaint (First Information Report or FIR) to the local police.  The applicant started getting death threats.  His parents and the Panchayat authorities were called to the police station.  [Mr A] was there and threatened to kill the applicant, and claimed that the police were in his hand, and that no one questions him if he does anything to the applicant or his parents.  The applicant’s parents have been getting constant threats.

20. The applicant submitted the following documents:

    ·October 2015 text message from [Mr A] to the applicant saying he was lucky he wasn’t killed at the airport, demanding [amount] rupees and that he divorce his wife.  Threatening to kill the applicant and his family with the help of the police. 

    ·Photos of [Mr A] with his friends and politicians (and his gun).

    ·The applicant’s undated letter to the [Official 1 in] Amritsar recounting issues in the marriage and that he had sold his land to support his ex-wife.  His parents paid for their travel to India in July 2015 when his cousin took his ex-wife and children from the airport leaving the applicant in Delhi.  Due to his domestic problems he had not been at work resulting in him being suspended, he has asked for reappointment.  His parents found out that his ex-wife has reported to the [specified] police post that he has been demanding dowry, which was false. 

    ·The applicant’s letter to the [Official 2], dated [in] November 2015, asking for the cancellation of his ex-wife's FIR.  And a further letter dated 18 January 2016 stating that the Amritsar police are being influenced by his ex-wife’s family and requesting the inquiry be conducted in Chandigarh. 

    ·The applicant’s mother’s letter to the police dated [in] July 2017 referring to a dispute between the applicant and [Mr A], who was threatening him and had registered a case against him. 

    ·The applicant’s mother letter to the [Official 3], dated [in] February 2018 requesting cancellation of the FIR lodged against the applicant.  She refers to her previous complaint dated September 2017 and states that the Amritsar police are not handling the complaint due to political pressure and requesting it to be transferred to Chandigarh.  She relates the history of the marital dispute and that [Mr A] took the applicant’s wife and children from Delhi airport.  The applicant’s now ex-wife had lodged a false complaint leading to an FIR [in] October 2015, the applicant had asked for it to be cancelled.  She and the applicant’s father had reported it to the media [in] July 2017.  On this letter there is a handwritten annotation, apparently by an official in the police department, directing that it be ensured that justice be done (the rest is illegible).  

    ·[A court’s] dismissal of the applicant’s ex-wife’s maintenance and divorce applications in 2019, for lack of appearance. 

    ·News article July 2017 with English translation, reporting that the grandparents are seeking justice for the taking of their daughter in law and grandchildren by [Mr A].  It states that their son was beaten and a false case raised against him. 

    ·Sale of land by the applicant dated July 2015

21. During the interview the Delegate asked the applicant if his family had any contact with his parents-in-law.  The applicant said they tried, but the in-laws issued threats: “divorce her or we will kill him”.  The applicant said his father was a retired [Occupation 1] and the applicant was in [Agency 1].  They arranged for the [agency] to dismiss him from his job.  He had leave for five years without pay until 2013.  First they contacted the Minister, the Minister contacted the police, then his job was dismissed.  A false FIR had been issued against him in 2015 when he went back to India with his family.  In 2015 he went to India with his ex-wife and children for the first time, although he himself had been back many times.  [Mr A] came to the airport with his friends and supporters and they were armed.  There was a confrontation in the car park and they wanted to kill him.  The police came, but they ran away with the applicant’s ex-wife and children.  The applicant’s parents went to the in-laws about a week after, but they did not get to see the children.  The in-laws threatened to kill his parents. 

22. [Mr A] was not happy about the marriage because he wanted his own marriage.  They are Akali Dal and have connections all over India.  The Delegate observed that it appeared to be a personal and not a political dispute.  The applicant said it was because they are linked to Alkali and he is linked to the Congress Party, his father is in the [named agency] and a lot of people support his father.  [Mr A] said “drop Congress and support Akali”.  He made trouble over the applicant’s marriage as an excuse.  The Delegate observed that none of this was an issue for eight years while the applicant was married.  The Delegate asked whether it was because [Mr A] wanted to marry the applicant’s wife.  The applicant said yes, but first it was about politics. 

23. Asked how he supported Congress the applicant said it was by social work in the village, such as helping poor people with their marriages.  The Delegated noted that the applicant had only been back for short trips since 2008. Asked how he supported Congress from Australia the applicant said he helped during the election.  His father was still helping Congress.  Asked again how he was involved with the Congress, the applicant said he helped poor people with food and to arrange their marriages and ask them to join Congress.  The applicant said his father was going for higher office.  He was head of the village already and was a Congress worker.  The applicant was doing the same thing with him.

24. The applicant said the police would do whatever his in-laws say because they approach the Akali Dal leaders who direct the police.  The police wouldn’t help the applicant so he went to the Court and his parents lodged an application as well.  An inquiry was held which found out the applicant had not asked for any money or dowry.  They started planning it before 2015 because the applicant didn’t join the Party.  The Delegate observed that in a Congress governed state the police would be on the applicant’s side.  The applicant said he had made many applications to the police but they did not help.  The Delegate observed that the police came to the airport and dispersed [Mr A]’s gang.  They could do this again.  The applicant said they just happened to be nearby.  He had been told that if he comes to India he would be killed.  The applicant referred to the newspaper article and said all the villagers can give evidence for him.  There followed a discussion about relocation and the applicant said the Akali Dal has people everywhere.  He referred to videos of [Mr A] supporting elections in Mumbai. 

25. The Delegate noted that the applicant had been back to India multiple times.  The applicant said [Mr A] himself was in Australia until 2009.  Asked why [Mr A] had so much power the applicant referred to the picture of him with weapons.  He was associated with gangs.  Three of the people photographed with him are among the ones who came to the airport.  He had said in front of the police that he would have killed the applicant at the airport. 

26. The applicant submitted a letter from [a named] Punjab MLA, stating that the applicant belongs to Congress Party and worked for it from 2002-2008. 

27. In submission to the Tribunal the applicant’s agents addressed the Delegate’s reasoning concerning the delay in the applicant lodging a protection application and returns to India over the years, noting that for most of that time he had a valid student visa, and highlighting the incident that occurred in July 2015. 

28. A hearing of the Tribunal was held on 1 March 2022.  The applicant said he was from [Village 1], Amritsar, [Subdistrict 1].  His parents are there, father retired from [work], sister has moved to Ludhiana.  His father lives sometimes in village, sometimes in Amritsar, because of the threats.  He does not know where his ex-wife is but heard she is back in Australia.  The two families are no longer in contact.  His ex-wife’s family lives about 50 kms away from [Village 1].  His ex-wife only went to India once, with him in 2015, that is also the only time the children went.  He himself would go back to sell land and then return to Australia.

29. The applicant finished high school and then joined the [Agency 1], as [a specified role].  He had this job for about 10 years until he left the country.  He lived in Chandigarh, after they married his ex-wife wife lived with him on and off there, and otherwise was in Amritsar, until they came to Australia.  The marriage was arranged through a contact of his.  Her parents and brother agreed to it.  An aunt of his ex-wife (with whom she lived, and who had no daughters) arranged the wedding.  His ex-wife had two cousins, [Mr B] and [Mr A], the applicant knew them both before the marriage.  [Mr A] was jealous about it. 

30. The applicant’s father had farmland, which was managed.  He had sold it all off now; whenever the applicant’s ex-wife and her family demanded money his father would give it to them.  He was not a member of Congress, just an area worker looking after villagers concerns with police or medical care, connecting then with MLAs.  The Tribunal asked the applicant why his father was not a member of Congress.  The applicant said he was a member, but not an MP.  The Tribunal put to the applicant that his answers on this question appeared inconsistent.  The Tribunal asked the applicant whether his father had any other role with Congress, the applicant said he did not.  But he was the head of the village board (five members) from [year] to [year].  Since then he helps out with elections, encouraging people to vote for and join the Party.  The applicant said he became involved in 2006.  The Akali Dal and [Mr A] threatened them.  The Tribunal asked the applicant what was happening in politics at the time he was threatened.  The applicant said he was just telling people to support and join the Party.  He was not allowed to be active because he had a government job.  He was just helping his father. 

1. The Tribunal put to the applicant that he did not seem to be have been involved in election politics.  The applicant said “we went to rallies and told people to support Congress”.  The Tribunal put the applicant that his description of political action lacked persuasive detail.  The applicant said he was very young at the time.  The Tribunal observed that in 2006 the applicant was about [age].  The Tribunal asked the applicant about his MLA’s letter, the applicant said that the MLA covers about 30 villages including the applicant’s own village.  The Tribunal asked about its reference to the applicant having been involved from 2002 to 2008, whereas the applicant had said he was involved from 2006.  The applicant said he was involved from 2002 but only a little.  2006 was an important election so he joined in on invitation. 

2. The Tribunal asked the applicant whether he was ever harmed before coming to Australia, in connection with his involvement with Congress.  The applicant said he was threatened to “stop supporting Congress and join SAD”.  The Tribunal asked the applicant if he could outline this in more detail.  He said they threatened to kill or gaol him and were firing at his house and threatened his father as well.  Asked what [Mr A]’s role in Akalli Dal was, the applicant said he was in the district youth wing.

3. About the incident at the airport in July 2015, the applicant said they were transferring to a flight to Amritsar and were on their way to the carpark when [Mr A] and his gang started yelling at him and the police noticed.  [Mr A] said he would kill the applicant.  When the police came they ran off with the applicant’s ex-wife and children.  She went willingly, possibly she had given [Mr A] the flight details.  The Tribunal asked the applicant why [Mr A] was angry.  The applicant said it was because the applicant refused to join the Akali Dal.  The Tribunal put to the applicant that it seemed to be more of a personal dispute, as the applicant himself had very little political profile.  It also seemed to be a dispute which was somewhat in the past.  There appeared to be no reason for [Mr A] and his family to continue to threaten the applicant or his family.  The applicant maintained that it was political and it had been going on since 2006.  If he had joined the Akali Dal there would be no problem.  His sister had to move to Ludhiana and his father is still getting threats.  The applicant had to leave his job.  The Tribunal observed that the applicant had not been in India to do his job. 

4. The Tribunal put to the applicant that [Mr A] had a low profile and discussed the country information which indicated that political party members do not generally face a real chance of serious harm and that election violence is isolated.  The applicant said [Mr A]’s father has a lot of supporters.  The Tribunal observed that the concept of forcing people to join a political party they oppose to was impracticable.  The applicant said [Mr A] threatened him in front of the police because he thought the applicant was the one forcing his father to stay with the Congress instead of joining the Akali Dal. 

5. The Tribunal asked the applicant if he was ever physically harmed.  The applicant said they tried to harm him when he was with others but he escaped and was staying mostly in Chandigarh, where, [because of his job], he was armed.  [Mr A] and his gang had killed people and there were lots of police complaints against them.  If he goes to India he will be killed.  They are making repeated false allegations to mentally harass him and his family. 

6. The Tribunal put to the applicant that his first written claims were somewhat different and did not mention a fear of [Mr A].  The applicant said he was in a low mood and depressed at the time.  He was very upset about his family and he thought he was going to be killed. 

7. The Tribunal asked about the outcome of the applicant’s complaint to the authorities about the false FIR, and noted that it did seem he was able to seek the support of the authorities.  The applicant said [Mr A] has connections everywhere. 

8. The Tribunal asked about money that was paid not to hurt him, the applicant said [amount] rupees was demanded of his father or they would kill him. 

9. The applicant confirmed he had no other claims. 

10. Following the hearing the Tribunal received a submission from the applicant’s agent addressing certain matters that arose in the hearing, and stating that the applicant’s parents are still being threatened.  The Tribunal has considered the agent’s arguments.  With the submission was the cancellation of the ex-wife’s FIR.  It is dated [in] May 2018, and signed off by the Amritsar police.  The agent also submitted articles Punjab Assembly election violence in 2022, including the killing of an Akali Dal worker and lodgement of 18 FIRs regarding minor incidents, mainly altercations between groups, according to the State Chief Electoral Officer.  With the submission was a GP referral of the applicant to a psychologist for anxiety and depression symptoms related to perceived threats. 

    Country information

11. The current DFAT Country information report for India states: DFAT assesses leaders and members of opposition parties do not face official or societal discrimination on a day-to-day basis. The risk of political violence between rival supporters increases during parliamentary and state elections, especially in states where results are tightly contested. However, in general, given the scale of the Indian election process, elections are conducted peacefully. DFAT assesses people who publicly express views critical of the government face a moderate risk of official discrimination.

12. COISS Report – India Common Claims (February 2022) includes the following information:

    India is a dynamic multi-party democracy with high levels of political participation. Aside from an interruption in the 1970s,252 when the term of the sitting Lok Sabha was extended past its five year term during a state of emergency, free and fair elections have been held since independence.253 While international commentary generally considers elections free and fair, vote buying and voter bribery are still widespread…

    The Akali Dal was founded in 1920 as a representative body to advocate for Sikh rights in British India. Post-independence, the Akali Dal or Shiromani Akali Dal (Supreme Akali Party) emerged as the main political rival to Congress in Punjab, particularly following the creation of a Sikh majority state in 1966.  The party divided into factions in the 1980s and has since split further into rival parties.  The major faction is the Shiromani Akali Dal (Badal), which was the senior coalition partner in government with the BJP in Punjab before losing power to the Congress Party in state assembly elections held in early 2017. Shiromani Akali Dal workers clashed with Congress and Aam Aadmi Party workers during the February 2017 Legislative Assembly election in Punjab. There was also poll violence involving Shiromani Akali Dal supporters during the 2019 general election.

13. The DFAT Country Information Report includes the following information.   

    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.

    …

    3.66 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.

    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.

    FINDINGS AND REASONS

14. Based on the information in his protection visa application the Tribunal finds that the applicant is an Indian national. 

15. The applicant did not claim, and the country information would not support, that Sikhs face a real chance of serious harm due to their religion.

16. The Tribunal turns to consider the applicant’s claims regarding his political opinion. 

17. Notwithstanding the letter from his MLA, the Tribunal does not accept that the applicant belongs to the Congress Party or was a Party volunteer.  The applicant stated in his oral evidence that he became involved in 2006, not in 2002 as the letter states.  The applicant sought to explain this by saying he was only a little bit involved in 2002, and that his main involvement was at the 2006 election.  The Tribunal was not persuaded by this explanation.  If the applicant was involved in Congress it would be a simple matter to give a consistent answer to the question of when this involvement commenced. 

18. It was claimed that the applicant’s evidence was affected by his suffering from symptoms anxiety and depression.  However, there is slender evidence of this other than that he has reported such symptoms to his GP, no firm diagnosis nor a connection between such symptoms and his ability to recall critical events, which the Tribunal found to be otherwise sound.  The Tribunal is not satisfied that the applicant’s evidence was affected by mental ill-health.

19. The applicant’s evidence about the nature of his political activity was vague, and lacking in detail.  He spoke of politics mainly in terms of social work at the village level.  His evidence about the content of direct political action was unconvincingly limited.  His evidence as to whether his father was a member of Congress or not was inconsistent, and the Tribunal was not persuaded that this was explained by his confusing “Member” with elected representative. 

20. As the Tribunal does not accept that the applicant belongs to the Congress Party or was a Party volunteer, it follows that the Tribunal does not accept that the applicant was attacked as claimed in his protection visa application.  (It also follows that the Tribunal does not accept that family land was sold in order to pay off the Akali Dal).  These findings are reinforced by the country information which indicates that violence between supporters of different political parties occurs mainly around polling and rallies.  The applicant’s claims of being pursued at or near his home after the election, and his family attacked as well, are not supported by the country information. 

21. The applicant implied that this was a targeted attempt to get him and his father to leave Congress and join Akali Dal.  The Tribunal does not accept that Sikhs in Punjab are being tortured or otherwise seriously harmed in order to press them to join the Akali Dal.  The Akali Dal has ample support among the Sikh community especially in Punjab and it would be an unrealistic exercise to try to convert established Congress supporters by threatening them and attacking them in their homes.  This claim was not generally credible and was not supported by country information. 

22. In support of his claims te applicant claimed that the dispute with [Mr A] and his family was mainly political.  However none of the direct evidence about this dispute refers to a political angle.  The evidence solidly points to the conclusion that the dispute related only to marital issues.  [Mr A] may be politically connected as indicated in the photographic evidence.  But there is no link between his dispute with the applicant, and the applicant’s political opinion. 

23. There is insufficient credible residual evidence before the Tribunal as to the applicant’s political opinion.  In any case the country information indicates that given the scale of political activity in India, political party members do not generally face a real chance of serious harm. 

24. The Tribunal is not satisfied that the applicant faces a real chance of serious harm due to his political opinion. 

25. The Tribunal is not satisfied that the applicant faces a real chance of harm for the reasons set out in s 5J(1).  Accordingly, the Tribunal finds that the applicant is not a refugee within the meaning of s 5H. 

26. The Tribunal turns to the complementary protection provisions.  The Tribunal accepts that the applicant was threatened at the airport in Delhi and in a subsequent text message.  However, the Tribunal does not accept that the applicant was assaulted; the preponderance of his evidence was that the police intervened and [Mr A] and his friends ran off.  After this there were competing complaints by the families against each other, which ended with the applicant’s ex-wife’s FIR being dismissed, and her application for maintenance also being dismissed.  The applicant claimed that there have been ongoing threats against him and his family.  The Tribunal does not accept that this is the case.  With the dispute from 2015 to 2018 being well-documented in reports to the police, the Tribunal would have expected any further threats also to have been supported by similar evidence.  There is none. 

27. The Tribunal does not accept that the applicant was dismissed from his employment due to the influence of [Mr A]’s family.  The plain explanation for losing his position was that he ran out of leave in 2013 when he was living in Australia.  The Tribunal also does not accept that the applicant’s father is hiding in Amritsar or that his sister had to go to Ludhiana due to threats against the applicant and his family.  The Tribunal finds, based on the applicant’s own evidence, that money raised by the sale of his own or his father’s land was to meet expectations that he financially support his then wife and children.  It was not to secure his safety from [Mr A]. 

28. Having considered the evidence as a whole, the Tribunal is not satisfied that [Mr A] or his connections have an intention to harm the applicant in the reasonably foreseeable future, or that there is a real risk of the dispute between the two families being reignited.   

29. The Tribunal is not satisfied there are substantial grounds to believe 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 within the meaning of s 36(2A).

    CONCLUSION

30. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36 (2) (a) or (aa).

31. 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.

32. Accordingly, the applicant does not satisfy the criterion in s 36(2).

    decision

33. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Genevieve Hamilton
    Member