2214288 (Refugee)

2214288 (Refugee) [2023] AATA 2507 (23 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Miss Amen Karim
CASE NUMBER:  2214288
COUNTRY OF REFERENCE:                   India
MEMBER:David James
DATE:23 June 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 23 June 2023 at 2:44pm
CATCHWORDS
REFUGEE – protection visa – India – Federal Circuit and Family Court remittal – caste, religion and imputed political opinion – member of low caste and Sikh – brother a university student union leader and anti-government activist – family supporters of Sikh separatism – applicant and family members attacked and brother shot – father suspended, imprisoned and dismissed from job – fear of harm from ruling Hindu nationalist party and girlfriend’s politician mother – delay in applying for protection – applied after student visa cancelled and period as unlawful non-citizen – intention to apply for sponsored working visa – no personal political profile – family still living in local area – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5H(1), 36(2)(a), (aa), 411(1)(c)
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth (1999) 197 CLR 510
ABT16 v MHA [2019] FCA 836
AVQ15 v MIBP [2018] FCAFC 133
Fox v Percy (2003) 214 CLR 118
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
SZLVZ v MIAC [2008] FCA 1816
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 17 April 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of India, applied for the visa on 13 June 2017. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a refugee as defined by s 5H of the Act and was therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to India, there is a real risk they will suffer significant harm as defined in s 36(2)(aa) of the Act. Therefore the delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act.
The applicant filed an application for review of the delegate’s decision with the Administrative Appeals Tribunal (Tribunal) on 15 May 2019. The applicant provided a copy of the delegate’s decision with the application for review.
As noted above, the applicant provided a copy of the delegate’s decision with his application for review. The Tribunal has read that decision and notes the decision records the delegate’s decision to refuse the applicant’s protection visa having considered the material before the delegate. The Tribunal is satisfied that decision of the delegate is reviewable under s 411(1)(c) of the Act.
On 10 March 2022 the Tribunal at Brisbane affirmed the delegate’s decision, and on 16 September 2022 that decision was set aside by consent by the Federal Circuit and Family Court of Australia (Division 2) at Melbourne. The matter is now before a newly constituted Tribunal pursuant to an order of the Court.
The applicant appeared before the Tribunal on 20 June 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicant was represented in relation to the review and Mr Tien of the applicant’s representatives firm appeared with the applicant at the hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the refugee Convention definition: MIAC v SZQRB (2013) 210 FCR 505.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The issues in this review is whether the applicant has a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that if the applicant was returned to India he would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to India, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
Claims
The applicant, when applying for the visa, on 13 June 2017 stated that was seeking protection in Australia; ‘Due to the political affiliations of my family, I fear for my safety if I have to return to India’. He further indicated as to his ability to obtain help and assistance that; ‘When my brother was attacked we had sought assistance from police. Due to the issues with my father noted in the attached declaration, no assistance has been provided’. The applicant’s claims for protection as outlined in his accompanying Statutory Declaration of 12 April 2017 are (in summary) that:
·His family belongs to [a Caste].
·In 2012 his brother became the President of [a] University Student Union and in about June or July 2012 his brother was attacked by 5-6 people and shot in the abdomen by a person called [Mr A] because they did not believe his brother being of a lower caste should hold that position.
·That he and his brother had earlier been attacked on their way home in 2011 and his brother had been confined to bed rest for 6-8 months due to his injuries.
·His father was [an Occupation 1] in Punjab and his father’s colleague committed suicide and his father was then blamed for his colleague’s suicide and suspended from duty during an investigation into the suicide.
·His father’s colleague’s wife extorted $12,000 from the applicant’s family in order to stop the investigation into his father. This investigation was later discontinued, and the applicant’s father returned to work as [an Occupation 1].
·Later in June or July 2013, the applicant’s parents when returning to their home were confronted by a group of people who tried to run his father’s car off the road. When his father stopped his car, he and the applicant’s mother were attacked resulting in the applicant’s mother suffering a broken arm and his father also being injured. The applicant believes this attack was a result of his father’s role as [an Occupation 1] and his father’s membership of a lower caste, the [Caste].
·His father was in 2014 blamed for the death of a [Country] citizen, [Mr B] who had been involved in a property dispute with his family in India resulting in his father being imprisoned for 2 ½ years before being released and the charges against him being discontinued. However, his father lost his job.
·He believes that his family has been targeted because of their lowly caste.
·He fears returning to India as his life will be under threat because of his family’s caste and any retribution that may be sought against him and his family from the BJP (Bharatiya Janata Party).
Department interview
The applicant was interviewed by the Department on 18 February 2019.
Post interview submission to the Department – 28 March 2019
On 28 March 2019 the applicant’s representative provided a written submission to the Department with supporting documents including a Statutory Declaration under the hand of the applicant dated 28 March 2019, a purported Indian police complaint (First Information Report –‘FIR’) alleging the applicant as being a suspect in an unlawful ‘break in’ in Ferozepur, India [in] January 2019 (at which time the applicant states he was already residing in Australia) and a typed statement from [Mr C] (applicant’s father) addressing money transfers to India from the applicant in Australia.
This submission addresses the refugee and complementary protection criteria and further submits that as to the applicant’s delay in making his protection claims (3 years and 3 months after his arrival in Australia) that:
…Our client first arrived in Australia on a student visa in 2014 with high hopes to further his education within the Australian Education landscape. Since his arrival to Australia, our client has never travelled back to India and thus highlighting his claims for protection from India. Despite the incidents in 2015, our client chose not to return to India due to the fear of being entangled into the false accusations by the current ruling party, BJP. Our client advised that he lodged his Protection visa in 2017 which coincides with the time when his father was wrongly convicted and placed in prison. His fear to return to India was further exacerbated after this incident and in turn, he was left with no other options but to lodge his Protection visa…
…Thus far, his family has suffered significant caste abuse and discrimination from members of the BJP party.
Due to the circumstances that led to our client’s lodgement of his Protection visa, he is unable to establish his political safety back in India. The Minister in question that was reported by our client’s father has gained much more power since 2015 as his party, Shiromani Akalidal is one of the closest alliance of the ruling party of the country (Bharatiya Janata Party (BJP)). The Minister has several other severe cases lodged against him ranging from corruption to conspiracy of murders. BJP has a strong hold all over India and is famous for their unorthodox behaviour by their followers…
Despite moving to another city in India, the fear of persecution by the BJP still lingers in our client’s mind. The ruling party is very powerful and is influential throughout India with its ideology and a wide network of strict followers throughout the states and provinces of India..
We would like to highlight the fact that our client belongs to a lower caste and is a Sikh by religion. BJP and its alliances are famously known for abusive behaviours to different lower sectors of society and discrimination towards different castes…
Our client has also recently received another false police accusation against him. Our client has been identified as an accused perpetrator despite the fact our client was residing in Australia at the time of the incident…
In the statement of the applicant’s father ([Mr C]), he states in part (as to money transfers made by the applicant to India) that:
…that [Mr D] is a permanent resident of the gold coast, Australia but his family is living in India and they have very close knit relations with our family from last fifteen years. [Mr D] parents are very old and so they cannot move and transact money as their health does not allow this. So being a good family friends so that I can transact the amount and give it to them as they live very close to our house. On 25 Feb, my son has transferred a amount of 100 dollars to my account. So that we can handover to [Mr D] family, sometimes the amount has been transferred to my wife [Ms E] account mother of [the applicant] as well.
In the applicant’s Statutory Declaration of 28 March 2019, he repeats his claims and identifies the reasons for his application or protection at paragraph 1 as being that:
a. difference in the Caste and creed,
b. threat from the Political Party which is ruling party of India – the BJP party,
C. false case registered against my family members, and
d. we as a family support Memorandum 2020 for the making of “Khalistan”.
At paragraph 7, he states that:
Threats from political parties – Another reason why I am unable to return to India and seeking protection from India is from currently ruling party (BJP). This is a purely fundamental Hindu party. They have young followers who are known as “RSS” and “Shiv Sena”. They are known to suppress the rights and liberties of other people from different religions and castes.
Further at paragraph 20 and 21 he states that:
We support Memorandum 2020 making of Khalistan. One of the other reason why I cannot go back to India is because I support this movement.
This memorandum, it is clearly written that all schedule castes should be treated equally and all job opportunities will be given to us.
The applicant in this Declaration also addressed concerns raised by the delegate in his interview with the Department and states that whilst on a Bridging visa E he had not worked. Further that he had transferred money to India in accordance with the explanation provided by his father as outlined above at paragraph 20, and that he cannot relocate within India, and that after arriving in Australia in 2014 he had hoped to attain Permanent Residency through his studies and skills.
Delegate’s decision
The delegate’s decision of 17 April 2019 to refuse the protection visa was made on the information before the delegate. The delegate accepted that the applicant was of a lower caste but on an assessment of the applicant’s truthfulness and overall credibility the delegate was not satisfied that the applicant faced a real chance of persecution involving serious harm and/or a real risk of significant harm and as such that the applicant was not a person to who, Australia owed protection obligations under either ss 36(2)(a) or 36 (2)(aa) of the Act.
Submission of 28 January 2022
The applicant’s representative forwarded a written submission repeating the applicant’s claims and a further statement from the applicant dated 1 February 2022 to the Tribunal in which the applicant states that his claims for protection remain the same and that he fears persecution on the basis of his membership of the Dalits group (lowly caste) in India and relies on his earlier declaration. He states that he has felt safe and secure in Australia and that his family have been victims of targeted attacks in India due to their lower caste as they are considered Dalits in India. He further states that his family are not supporters of the BJP but rather support the ‘Akali’ party in Punjab and repeats his earlier claims as to his fear of the BJP. The submission also contained copies of documents that had earlier been provided to the Department and country information and relevant media reports.
Submission of 21 February 2022
The applicant’s representative provided a written submission to the Tribunal dated 21 February 2022 which addressed the alleged fears of the applicant, his money transfers to India from Australia as previously explained in his father’s statement and details of his parent’s current residence in Chandigarh and lease documents in support of this address suggesting their need to move around India to avoid harm.
Invitation to attend hearing
On 1 June 2023 the Tribunal invited the applicant to attend a review hearing at the Brisbane Registry on 20 June 2023 at 9:30 am. This correspondence advised the applicant that the Tribunal had considered all the material before it relating to their application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing. The invitation stated that if the applicant did not attend the hearing, the Tribunal may make a decision on the case without further notice. Later the Tribunal postponed the hearing to 1.30pm on the same date due to other unforeseen recent commitments of the Tribunal.
Country information
The Tribunal has taken into account the DFAT Country Information Report India, 10 December 2020, as relevant, including the information under the heading ‘Demography’ at 2.8 to 2.12 where at 2.11 and 2.12 it is reported that:
Although the population is majority Hindu, in some states the majority of the population identifies with a single religion other than Hinduism. Muslims are a majority in the union territory of Lakshadweep (a tiny island chain off the southwest coast of India) and the far northern border union territory of J&K (particularly in the Kashmir valley). Christians are a majority in the three northeastern states of Nagaland, Mizoram and Meghalaya. Sikhs are a majority in Punjab. (For a breakdown of religious demography see Religion.)
Hindu tradition divided society into hereditary groups associated with occupation, commonly called ‘castes’. The caste system had four principal groups: Brahmin priests and teachers; Kshatriya warriors and rulers; Vaishya farmers, traders and merchants; and Shudra labourers. Each group encompassed thousands of sub-groups within a hierarchy. While Hindu in origin, caste has become a cultural phenomenon that also exists within other religions and across India’s many social, linguistic and religious communities. A group known as ‘Dalits’ or ‘untouchables’, due to their historical association with undesirable work such as cleaning or waste disposal, fell outside the four castes. In recognition of traditional discrimination against those outside the principal castes, the constitution includes special provisions for ‘Scheduled Castes’ (SCs) (mostly Dalits), ‘Scheduled Tribes’ (STs) (tribal and indigenous groups), and ‘Other Backward Classes’ (OBCs) (see Caste System).
Under the heading of ‘Race/Nationality’ at 3.4 to 3.9 where it is reported at 3.5 and 3.9 that:
Ethnicity and language are defining features in India and have been the most important factors for the creation of new states. The States Reorganisation Act (1956) created several new states, including Hindi-speaking Rajasthan, Marathi-speaking Bombay State, Kannada-speaking Mysore, Telugu-speaking Andhra Pradesh and Malayalam-speaking Kerala. In 1960, Bombay State was dissolved and split along linguistic lines into Gujarati-speaking Gujarat and Marathi-speaking Maharashtra. The former state of Punjab was divided in 1966 into the Punjabi-speaking state of Punjab, Pahari-speaking Himachal Pradesh and the Hindi-speaking state of Haryana, with Punjab and Haryana states sharing a centrally administered capital, Chandigarh. Pahari-speaking Himachal Pradesh became a state in its own right in 1971.
DFAT assesses India has effective constitutional protections against official discrimination on the basis of ethnicity and language.
Under the heading of ‘Religion’ at 3.19 to 3.26 it is reported at 3.19 and 3.26 that:
Religion plays a significant role in daily life in India. According to 2011 census data, almost 80 per cent (more than 1 billion people) in India are Hindus. Another 14.2 per cent are Muslims (just under 200 million), 2.3 per cent are Christians (around 32 million), 1.7 per cent are Sikhs (just over 23 million) and less than 1 per cent are Buddhists (just under 10 million). A further 1.3 per cent (around 18 million) follow other religions including Jain, Zoroastrian, Jewish and Baha’i faiths, and tribal religions.
Researchers and lobby groups state government officials can be indifferent or complicit in acts of targeting religious minorities. In 2019, Forbes Magazine claimed ‘the discrimination of religious minorities in India is far-reaching and deeply enshrined in law.’ The article cited anti-conversion and anti-cow slaughter laws being used to discriminate against religious minorities or ‘to justify extrajudicial killings, violence and forced conversions of non-Hindus to Hinduism.’ In 2019, Amnesty International reported ‘scores of hate crimes’ against Muslims and other religious and ethnic groups across the country. Human Rights Watch (HRW) reported incidents of mob violence against minorities, especially Muslims, by extremist Hindu groups, and claimed the government was criticised ahead of the 2019 elections for failing to stop such attacks. HRW notes, however, that PM Modi called for inclusive politics after the elections. The Indian Government has rejected as ‘biased’ the United States Commission for International Religious Freedom (USCIRF) 2019 report, which designates India as a country of particular concern for engaging in or tolerating religious freedom violations.
Under the heading of ‘Sikhs’ at 3.62 to 3.68 it is reported at 3.62, 3.64 and 3.67 to 3.68 that:
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).
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.
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.
DFAT assesses Sikhs in India generally face a low level of official and societal discrimination and violence.
Under the heading of ‘Political Opinion (Actual or Imputed)’ at 3.80 to 3.83 where it is reported at 3.82 and 3.83 that:
India has a diverse political landscape, which represents different ethnic, religious, secular and political interests. There are no constitutional, legal or other institutional restrictions preventing minorities from participating in politics. Political parties often court ethnic, religious and caste-based minorities for their ability to deliver ‘vote banks’.
Observers assess the government has sought to align Indian nationalism with Hindu nationalism. They claim the BJP has benefited politically from some Hindu organisations’ use of violence to polarise the electorate along religious lines. The 2019 USCIRF report – which the Indian Government rejects – claims certain BJP members have affiliations with extremist Hindu groups and have used inflammatory language about religious minorities publicly (see Recent History and Hindu nationalist organisations). This has led to concerns minority rights and religious freedoms are being threatened, and the link between democracy and secularism is being weakened.
Under the heading of ‘Opposition Parties and critics of the Government’ at 3.84 to 3.91where it is reported at 3.91 that:
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. This may include arrest, harassment and prosecution.
Under the heading of ‘Caste System’ at 3.145 to 3.154 it is reported at 3.146 to 3.148, 3.150 and 3.154 where it is reported that:
A group known as ‘Dalits’ (sometimes referred to as ‘Untouchables’ or ‘outcastes’) fell outside the caste structure. Dalits were historically associated with work seen as less desirable; including work involving cleaning or waste, and traditional taboos existed against members of the four castes touching them. Many Dalits continue to work as sanitation workers, manual scavengers, cleaners of drains, garbage collectors and road sweepers. In 2019, it was estimated 40-60 per cent of the 6 million households of Dalit sub-castes were engaged in sanitation work.
The government uses the official term ‘scheduled castes’ (SCs) to describe Dalits. The term Dalit encompasses more communities than the official term, and can include nomadic tribes and STs. SC communities exist across India, and comprise 16.6 per cent of the country’s population (2011 Census). When combined, SCs and STs make up just over a quarter of India’s total population. Populations are concentrated in India’s northern states (Punjab, Himachal Pradesh, West Bengal, Uttar Pradesh and Haryana).
In recognition of entrenched disadvantage, the constitution contains several provisions relating to SCs (mainly Dalits), STs (tribal and indigenous groups) and ‘Other Backward Classes’ (OBC) (Articles 15-16 and Part XVI: Articles 330-342). These include the establishment of separate National Commissions for SCs, STs and OBCs; reservation of seats in the Lok Sabha and state government legislatures; public service appointments; and access to higher education. Article 17 abolishes the practice of untouchability. OBCs are separate from SCs or STs, and are determined by the central government on a rolling basis with castes and communities added or removed depending on social, educational and economic factors. OBCs are considered educationally or socially disadvantaged. OBCs have an income cap; once reached, they are no longer entitled to reservation. Those who belong to ST/SC communities continue to receive the benefits of reservation irrespective of their socioeconomic status.
Some Dalits have achieved high office, helped in some cases by quotas for educational, public service and political representation. Dalit NGOs, community groups and chambers of commerce exist. India’s President, Ram Nath Kovind, is a Dalit from the ruling BJP and is the second Dalit to hold that position. Nonetheless, human rights observers note the problem of social ostracism remains for Dalits.
DFAT assesses Dalits and other people considered to be of a low caste face a high risk of official and societal discrimination, including social segregation, exclusion, compromised access to education and health care, and a higher risk of sexual assault in the case of women and girls.
Under the heading of ‘Treatment of Returnees’ at 5.39 where it is reported that:
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.
Under the heading of ‘Exit and Entry Procedures’ at 5.40 to 5.45 where at 5.44 and 5.45 it is reported that:
India has a border alert mechanism, known as a Look-Out Circular (LOC), that allows certain agencies to flag citizens and non-citizens for border intervention on entry to or exit from the country. Authorities can request LOCs in cases where a person is a suspect, accused or under investigation for cognisable offences under the Indian Penal Code or other penal laws. LOCs can be used to locate and prevent a person from exiting the country (via airports, ports or land border crossings), and allow for arrest in some cases (such as when a person is absconding). In other cases, immigration authorities may not prevent LOC subjects from travelling, but originating agencies will be informed about the person’s departure or arrival. Generally, LOCs are valid for one year from the date of issue. In some cases validity can be longer (such as LOCs issued at the request of courts or Interpol, those with a specified duration or those linked to impounding of passports).
Travel document applications for Indian nationals in Australia are issued by the Indian High Commission in Canberra or the representative consulates in Sydney, Melbourne and Perth, depending on the state of residence. The Indian High Commission has previously advised of the requirement that a travel document application should be signed by the applicant and accompanied by a letter stating the applicant consented to the issuance of the document and is willing to return to India.
And ‘Prevalence of Fraud’ at 5.62 to 5.65 where at 5.64 and 5.65 it is reported that:
Local sources told DFAT identity documents in India are unreliable because ‘breeder documents’ (which include birth, marriage and death certificates used to support applications for identity, residence and travel documents) and other basic government identity documents can be obtained fraudulently. Easily-faked bank statements or utility bills can also be used to demonstrate residency. Verifying documents is time consuming and largely unreliable given the ease of fraudulently obtaining genuine documents of all types.
Document fraud is a common criminal activity. Organised networks of agents are known to provide complete packages of fake documents. The Times of India reported in February 2019 the arrest of five persons in Hyderabad for fabricating documents and official stamps, and helping people obtain visas for Canada, the United States, France and Italy through fraudulent means. During the arrest, the police seized 88 Indian passports, three fake passports, two forged passports, 130 fake rubber stamps, a rubber stamp-making machine, printers and scanners. The accused had reportedly processed 400-450 visa applications, many of which had resulted in visas. While the applicants came from across India, most were from Punjab, Andhra Pradesh and Uttar Pradesh. The accused allegedly took applicants’ original passports, charging approx. AUD 750-850 as a first instalment, and a further AUD7,500-8,500 if the visa was successful. The process allegedly involved tampering with original Indian passports, and forging documents such as bank statements and seals, income tax returns, identity proofs, letter heads and logos, as well as rubber stamps of government officials, immigration stamps used at Indian airports, and immigration service stamps of the US, Australia, the UK and the UAE. Sources told DFAT organised networks such as those arrested in Hyderabad in 2019 provided complete packages of fake documents and charged significant fees for the provision of fraudulent documents.

The Tribunal has also considered Professor Baldev Singh’s article, ‘Sikism & Castes’ of 10 April 2015 which is available on the ‘Sikhnet’ website and in which it is reported that:
The issue of caste in Sikhism is quite complex, always inviting a diversity of impassioned opinions. One thing we can be certain about is that Guru Gobind Singh had abolished all caste inequality with the inception of Khalsa on 13 April, 1699 and with the institution of Khanday-Ki-Pahul or the Baptism of Sword. Faithful Sikhs do not practice caste discrimination but this is not to say that all Sikhs necessarily act in accordance to their faith. Consequently, the caste does exist in Sikhism , though in a diluted form than found in the rest of Indian society.
But at the outset one thing can be confidently stated which is that there is no clearly defined caste hierarchy in Sikh society, leave alone a vertically ordered one. Any layperson or author giving a clearly ordered Sikh caste hierarchy is himself mistaken or is purposefully misleading others.
Debate on Caste in Sikh Society
There has existed a vibrant debate within the Sikh Panth on the issue of the caste since late 19th century. Generally, this debate has been shaped by two broad lines of argument.
Castes Exist But All Castes Are Equal
Some say that Guru Gobind Singh did not abolish caste system within Sikhs but merely implied equality of all castes. As per this view each caste was to play their respective functional role but no caste was to be treated as superior or inferior to the other, and that all occupations from that of a sweeper to that of a priest were to be held in equal esteem as each caste had traditional specialization in producing goods and services that the society needed. These people cite the example from Gurus' own family as an example for this. They say that since none of the Gurus or their family members married outside the Khatri, or the trading caste, it is a proof positive that the Gurus meant to abolish inequality inherent in caste system but not necessarily the caste itself.
Caste Should Not Exist At All
There are some Sikhs who believe that caste should not exist in any form and all marks of caste identity should be abolished which should lead to fusion of all castes into one temporal and spiritual body called the Khalsa. This view was very actively propagated by Singh Sabha, a reformist Sikh movement which was born in the later half of 19th century in response to Christian attempts to proselytize Sikhs. Later the Singh Sabha movement was also engaged in a prolonged ideological battle with the Arya Samaj of Swami Dayanand over various issues, but both reformist bodies were in an unanimous agreement in their view that caste should not survive in Indian society in any form whatsoever.
This issue whether Sikhism abolished all forms of caste or merely the inequality inherent in its corrupted form has been debated extensively in the past and is unlikely to have a clear resolution in near future . But despite this all observant Sikhs agree on the point that all castes are fundamentally equal and this view is also embedded firmly in the Sikh belief and practice through the establishing of four separate but equally weighted entrances to Hari Mandir Sahib (Golden Temple), the holiest Sikh shrine. According to many Sikhs, each of these four entrances represents one of the four traditional varnas of Hindu society.
If some Sikh does not believe in the equality of all castes and treats one caste or occupation superior or inferior to the other , it is his personal failing not that of the Sikhism.[1]
[1] ‘Sikism & Castes’, Sikhnet, Professor Singh, B, 10 April 2015, hearing – 20 June 2023
The Tribunal hearing was conducted at the Brisbane Registry in the English language, but with the assistance of a Punjabi interpreter who assisted the applicant and the Tribunal when needed.
The Tribunal explained to the applicant that the hearing would consider the applicant’s application for a Protection visa afresh. The applicant when questioned by the Tribunal as to his understanding of the relevant statutory framework and concepts as to the refugee and complementary protection criteria explained that he was familiar with and understood the criteria.
The applicant told the Tribunal that he had completed his Protection visa application with the assistance of his then migration agent to whom he provided the information about his history and claims. The applicant explained that he was aware of the contents of his application and that all his statements in that application together with his written Statutory Declarations and Statements that he has provided to the Department and the Tribunal were true and correct and that he maintained his claims for protection.
The applicant told the Tribunal that he had been brought up with his two brothers in the family home of his father [an Occupation 1] and his mother who maintained the household in Ferozepur (Firozpur) in Punjab. He explained that his family also had a home in the Punjab capital, Chandigarh and that he and his family had regularly moved from time to time between their two homes over the past 20 years. He told the Tribunal that his parents now spend most of their time at the family home in Chandigarh.
The applicant stated that he and his family were known as ‘Dalits’ in the caste system in India and in his home region of Punjab. He explained as such he and his family were subject to societal prejudices and discrimination as to employment opportunities and his father had only been able to become [an Occupation 1] due to the quota system that applies to government positions allowing lower caste members to obtain government employment.
He told the Tribunal that he had finished his schooling at [School 1] before completing his year 11 and 12 studies at [School 2] where he studied [Specified] subjects.
In reply to the Tribunal’s questions the applicant explained that but for attending one student demonstration when he was a year 11 student at the request of his older brother he had not been involved in any anti-government or other political demonstrations and/or any political and/or societal demonstrations or activities in India. He further explained that when he had attended this demonstration with his brother, he had run away when police arrived before being approached and/or identified by any police.
The applicant agreed that he had not attained any form of political profile in India and had not been involved in politics in any way in India.
He explained that shortly after completing his schooling when he was around [age] years of age, he came to Australia on a Student visa. After arriving in Australia in March 2014 he enrolled in and commenced studies in an [Advanced Diploma] at [College], in Brisbane. Whilst attending this college he obtained employment at [Workplace] in [Suburb] on the Gold Coast and resided with six or seven other guys at [Suburb].
He explained that after deciding that he wanted to remain in Australia he had discussed his intentions with his employer who expressed a willingness to support him through a sponsored 457 Skilled visa as a manager of the franchise [business]. He then made inquiries as to this pathway to residence with a migration lawyer on the Gold Coast who later told him that his 573 Student visa had been cancelled and that he was at that time unlawfully in Australia. He then travelled to Brisbane and spoke with members of the Department who informed him that his student visa had in fact so been cancelled because of his failure to regularly attend classes. He explained to the Tribunal that at that time he had three months of study that had not been completed and as such if he could not return to his studies, he would not be able to finalise his studies and obtain his Diploma.
He explained that after discussing his situation with the Department he was told that he had been unlawful for the past 1 ½ months and was issued with a Bridging visa class E in March 2017 which allowed him to remain in Australia for two weeks to allow him to finalise his affairs and depart Australia for India. He stated he informed the Department that he could not go as it was his intention to apply for a sponsored Skills 457 visa and that he had not been back to India since arriving in Australia due to some personal issues.
The applicant told the Tribunal that it was at this time he applied for his Protection visa as he did not want to return to India as he feared being harmed in India because of his lowly caste and being known as ‘Dalit’.
The applicant under questioning stated that he had not raised his ‘personal issues’ for not returning to India earlier because he had been planning on finishing his Diploma and then obtaining a sponsored Skills 457 visa and then progressing to permanent residency in Australia without applying for a Protection visa.
The Tribunal’s put to the applicant that he primarily wanted to stay in Australia due to the better prospects for him here in Australia and secondly because he didn’t want to return to India for these ‘personal reasons’ which related to his purported caste, being known as a ‘Dalit’. The applicant agreed that it had been his intention to study and then obtain a Skilled Visa and then permanent residency as he primarily wanted to be lawful in Australia.
He further stated that he never wanted to return to India because of ‘personal issues’ that had occurred to him and his family in India because of their caste.
As to these ‘personal issues’ he explained that his brother had been shot when he had been appointed the President of the University’s Student Union in 2012. He stated that later when his brother was running a [studio] and hosting and anti-government (BJP) [Online] site that his brother’s studio and site were closed down by the BJP government.
In reply to the Tribunal’s questions as to these two incidents relating to his older brother, the applicant was unable to further explain or point to any media reports that he had previously provided to the Department and/or the Tribunal that identified and/or suggested that these incidents were caste related and motivated rather than being isolated responses to his brother’s own personal circumstances and conduct.
As to these ‘personal incidents’ the applicant further explained that his father had been in 2015 wrongfully arrested and charged in relation to the death of a [Country] citizen, [Mr B] a supposed member of the BJP and subsequently imprisoned but later released after the charges were dismissed. However, he further explained that his father was dismissed from the [Employer] as a result of these false allegations which had arisen due to his father’s caste and had been motivated on that basis. He further explained that when his mother had gone to visit his father in prison, she had been strip searched while other visitors were not so searched. He told the Tribunal that this was another example to his family being targeted, attacked and harmed because of their caste.
Again, the Tribunal with reference to the applicant’s submission of media reports relating to his father’s arrest and the investigation into the death of the [Country] citizen the subject of that arrest was questioned as to whether there had been in the reporting a suggestion that this arrest of his father was caste based and/or motivated. In reply, the applicant again stated as he had previously done so during the hearing that all these ‘personal issues’ were caste based and motivated and that if he was to return to India he would be killed or otherwise harmed because of his caste like his family had in the past been so harmed for that reason.
He also explained that his younger brother who had completed his studies in [Subject] and had not been politically active had ceased contact with his family and had left without telling anyone in the family where he was going. He explained that this brother had vanished, and the family did not know where was now, and that his disappearance was caste related although he was unable to explain to the Tribunal how his younger brother’s voluntary departure from the family was so related to a caste issue.
The applicant also pointed to the Police accusation against him as outlined in the police report (First Incident Report) of which a translated copy had been provided to the Department. It was the applicant’s evidence that this report which purportedly identifies the applicant as a suspect in relation to an offence when he was resident in Australia is another example of him being persecuted and targeted because of his caste. Under questioning as to this issue, he agreed with the Tribunal’s observation that no further contact had been made by the police with his family or himself as to this allegation and his nomination as being a suspect in relation to that alleged offence. It was further put to him that given the passage of time and that his family had remained resident in their long-time family homes that as there had been no further contact by the police the matter may be at an end. The applicant stated that if he was to return to India this allegation may be raised again and it would be a danger for him because it could be used to imprison him because of his lowly caste membership.
When asked if there were any other issues or occurrences that supported the applicant’s fear of persecution arising from his purported caste, Dalit. He explained that his girlfriend’s mother who was a BJP politician had in the past month threatened him over the phone ‘to cut him into little pieces if he returned to India’. He further explained that while at school in India he had become friendly with his now girlfriend ‘[Ms F]’ who had kept in contact with him when he came to Australia. He explained that she had completed her [studies] and was now living and working in [Country]. He said that they were planning on getting married and then she would come and join him here in Australia as he did not want to relocate to [Country].
As to the threat made by her mother, he explained that several weeks ago when [Ms F] was vising her mother in India, she had telephoned him. During that call her mother had taken the phone from [Ms F] and then spoke to him making the threat. He said the threat was made as her mother did not want [Ms F] to marry him because of his lowly caste and being ‘Dalit’.
When asked why he thought that such a threat would amount to a risk of harm, he explained that as his girlfriend’s mother was a BJP government politician, she could have things happen to him and he could end up being shot like his brother, vanish like his younger brother or be imprisoned like his father because of his caste.
It was the applicant’s evidence under further questioning that these incidents that had occurred to his family were all connected and part of a targeted attack on his family because of their low social status and being of a lowly caste and known as ‘Dalit’. Further that as his older brother had been vocal against the BJP government this persecution of his family that arose because of their lowly caste membership was more pronounced and would be carried out against him if he returned to India by powerful members of the BJP government and/or their supporters and institutions.
The Tribunal with reference to the available country information as outlined above at paragraph 26 raised with the applicant that given the large population of Sikhs in Punjab that he would not likely face any such persecution arising from his caste membership. The applicant in reply stated that his caste, ‘Dalit’ members accounted for about 12% of the Sikh population and were all subject to such persecution and discrimination. He agreed that given there was about 16 million Sikh’s in Punjab as reported by the country information and that they were the majority religious group in Punjab that the lower caste population was close to 2 million people in Punjab. He agreed with the demographic information relating to the population of Sikhs in Punjab and restated that all of those people who were of the lowest caste and considered ‘Dalit’ were the subject of persecution. He said that as a member of that group and given the persecution his family had suffered over the years, he feared harm from other members of both the Sikh community and members of the BJP because of his lowly caste.
In discussions as to the country information that is outlined above at paragraphs 26 and 27 the applicant agreed with the information but highlighted that although his religion is Sikh he is of the lowest caste and ‘Dalit’ and as such not considered by other Sikhs as a pure Sikh. He further commented that if a separate state of Khalistan for the Sikh’s was created in Punjab, then he and his caste could go to the same temple but presently they cannot and have to attend separate temples for the ‘Dalit’.
He also responded by explaining that he is scared of the BJP and that he wants to marry his girlfriend but as she is of a higher caste her family will not allow them to marry and that is why his girlfriend’s mother has threatened him and will do harm to him if he returns to India. As to the issue of the timing of this new claim he explained to the Tribunal that his earlier migration agent had advised him that the tensions with his girlfriend’s family did not matter, and he should not raise them but given the recent threats from his girlfriend’s mother he had now decided to raise the issues and his fears in this regard with the Tribunal.
Notwithstanding this claim as to the threats from his girlfriend’s mother a BJP politician is a ‘new claim’ the Tribunal is satisfied that the applicant’s explanation for not earlier raising this claim is reasonable in all the circumstances of this matter especially given that the most recent threats ‘to cut him up into small pieces if he was to return to India’ have only been recently made to the applicant.
The Tribunal also raised with the applicant the issue as to the numerous money transfers he had made involving thousands of dollars in payments to 20 different recipients between March 2014 and February 2019 which had included a period when he was not permitted to work in accordance with the conditions of his Bridging visa. Without delay the applicant was able to respond to the Tribunal’s questions as to the numerous recipients of these monetary transfers to India by identifying who the particular recipients were and his connection to them.
In these replies the applicant explained how at the request of his housemates he had made the payments to their various relatives with money provided to him by his friends who had asked him to make the transfer as they had reached their own personal limits of overseas payments.
Given the immediate and detailed responses given by the applicant to the Tribunal’s questions in which particular recipients were identified. The Tribunal is satisfied that the applicant’s explanation as to his involvement in these money transfers and his explanation as to the source of the money is reasonable and that he had replied to the Tribunal’s queries in this regard, honestly.
FINDINGS AND REASONS
The Tribunal notes that it is conducting a ‘de novo’ review and has considered the material afresh and made its own assessment and determination as to whether the applicant meets the criteria for the grant of a protection visa.
Country of reference
According to the protection visa application, the applicant claims to be citizen of India and provided a copy of his Indian passport, based on this material the Tribunal finds that the applicant is who he says he is, and a national of India. India is therefore the receiving country for the purpose of assessing the applicant’s claims for protection.
Analysis
The Tribunal is inquisitorial and can seek out evidence it requires in order to reach a determination, but the Tribunal is not required to actively seek out evidence to support an applicant’s claim: see ABT16 v Minister for Home Affairs [2019] FCA 836.

The Tribunal notes that the Act places certain obligations on protection visa applicants in presenting their case. It is the responsibility of an applicant to specify all the particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such a claim.[2] The Tribunal on review does not have a responsibility or an obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[3] This is consistent with the established proposition that it is for the applicant to make his or her own case.[4]
[2] Section 5AAA of the Act.
[3] Ibid (with effect from 14 April 2015).
[4] Abebe v Commonwealth (1999) 197 CLR 510 at [187].
The mere fact that a person claims fear of persecution for a particular reason or reasons does not establish either the genuineness of the asserted fear or that it is ‘well-founded’. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal; that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically all the allegations made by the applicant: see MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169-70.
The Tribunal notes that assessment of credibility is an inherently difficult process and can be based on imperfect perceptions of truth.[5] In this regard the Tribunal has taken into consideration the comments of both the High Court and Federal Court of Australia,[6]and notes that in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably, considering assessment is not an exact science.
[5] Fox v Percy (2003) 214 CLR 118
[6] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
In this regard, courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[7] A similar approach is taken in the Department’s Refugee Law Guidelines[8] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[9] which provides useful guidance for this Tribunal.
[7] SZLVZ v MIAC [2008] FCA 1816 at [25].
[8] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines)
[9] UNHCR, re-issued February 2019 at [203]–[204].
The Tribunal found the applicant to be an honest and reliable witness who gave evidence in accordance with his earlier Statements and Declarations and as such was a reliable historian as to his earlier life and upbringing in India and his subsequent life and experiences in Australia.
On the evidence before it the Tribunal is satisfied that the applicant is of Sikh religion and heritage and of the lower social caste, ‘[Caste]’ in his home of Punjab and he and his family are considered ‘Dalit’ (as outlined above in the country information under the heading of ‘Caste System’ at paragraph 26 ‘Dalits’ are sometimes referred to as ‘Untouchables’ or ‘Outcasts’ and are associated with work seen as less desirable and that DFAT assesses ‘Dalits’ and other people considered to be of low caste as faciong a high risk of official and societal discrimination including social segregation, exclusion, compromised access to education and health care, and a higher risk of sexual assault in the case of women and girls).
The Tribunal is also satisfied that the applicant’s older brother was shot in the stomach following his election and/or appointment to his University’s Student Union’s Presidency and that later while operating a [studio] and [an Online] site that expressed anti-BJP commentary he had his studio and [Online] site and/or account closed by government officials.
It is also accepted that his father as provided in earlier material was blamed for a colleague’s suicide and subsequently the subject of an extortion by his former colleague’s wife. Further it is accepted that the applicant’s father and mother were involved in a traffic incident and attacked in 2013 as provided for in material provided to the Tribunal and that his father in 2015 whilst [an Occupation 1] was charged and imprisoned in relation to the murder of a [Country] citizen and that after being so imprisoned for over two years from 2015 the charges were discontinued or dismissed. It is also accepted that after his father was released from prison his employment with the [Employer] was terminated. Further it is accepted that when his mother visited the applicant’s father in prison, she was subjected to a strip search and was humiliated by the experience. Additionally, the Tribunal accepts that the applicant’s younger brother has not been in contact with the applicant or his family for many years and is viewed by his family as having vanished.
The Tribunal also accepts that the applicant has formed a relationship with his girlfriend ‘[Ms F]’ who is presently living and working in [Country] and that they wish to marry notwithstanding her mother’s objections to their marriage. Further in this regard, the Tribunal accepts that his girlfriend’s mother a BJP politician in India has recently threatened the applicant with harm during a recent telephone call in her expression of her opposition to his relationship with her daughter.
In regard to these various incidents raised by the applicant in evidence the Tribunal is satisfied on that evidence that the applicant holds a subjective fear of harm as it is his personal view that all of these separate incidents as outlined above are in fact connected and show that he is in danger of harm through the persecution of him and his family arising from their membership of the lowest caste in their society and that they are regarded as ‘Dalits’ or ‘undesirables’. The Tribunal accepts that the applicant subjectively believes that this societal persecution is magnified by his girlfriend’s mother’s political position as a government member of the ruling BJP party and that through the BJP he will be harmed in some way as a result of his caste and being a ‘Dalit’.
Notwithstanding the Tribunal’s acceptance of the applicant’s subjective views as outlined above and although the Tribunal found the applicant to be generally an honest witness and a good and reliable personal historian, the applicant’s evidence as to his fears of harm were vague in nature. Further his insistence and belief that these unconnected and isolated incidents that have happened to his family are all connected and part of an apparent and perceived systematic attack upon his family because of their social standing has been found by the Tribunal to be implausible and without any evidentiary substance and/or support.
Membership of a particular social group – lowly caste - Dalit
The applicant relies upon a series of apparently unrelated events as being all motivated by his family’s lowly social status and caste and being ‘Dalits’. It is his belief that these events are all connected and support his fears of harm because of societal discrimination and that the governing BJP party, and its members and supporters will harm him because of his social status and caste as they have his family. Ass outlined above although the Tribunal accepts the applicant is of a lowly caste and that he and his family have and will likely in the future be subject to some degree of societal discrimination there was no evidence placed before the Tribunal that supported that any of the tragic and unfortunate events that have occurred to his family have been the subject of systematic targeting of his family by others and/or the BJP.
The Tribunal is not satisfied that the events complained of by the applicant are in any way connected and/or have been motivated by caste and/or have been instigated by BJP members and /or supporters.
The applicant’s fears in this regard are not well-founded.
Brother’s shooting and closing of his [studio] and [Online] account/platform
The applicant relies firstly on his brother having been shot in 2012 after becoming the President of the [University] Student Union. However, there was no evidence proffered by his brother nor any medical evidence and/or police reports or reference to this incident by his father in his statement which only addressed the issues of the applicant having sent money to India. Notwithstanding that the Tribunal has accepted the applicant’s evidence as to this occurrence but notes there is no evidence before the Tribunal to support or even suggest that this shooting was politically motivated and/or was motivated by caste discrimination and/or resentment or hatred. It is not accepted that this shooting was so motivated and may of course simply been the subject of a personal issue or jealously motivated if not a random shooting unrelated to his brother’s position with the student union, and/or his family’s social status and caste.
Additionally, as to his older brother the applicant provided a vague and general statement that his brother’s [studio] and [an Online] account and/or media platform that he had run had been closed because of his brother’s anti-government comments on the platform. However, but for the applicant’s own statements as to this occurrence there was no other evidence placed before the Tribunal in support of these claims. The applicant did not produce any official notifications of the closing of this social media platform, the [studio], or evidence of court proceedings or orders relating to this issue nor any examples or recordings of the supposed anti-government statements and/or postings that he alleges his brother had made. In this regard the Tribunal notes that it was the applicant’s evidence that since the closing of his brother’s [studio] and social media business that his brother now operates a [vending] and market business and has done so for many years without incident. It was the applicant’s evidence that his brother has not since the closure of his earlier business been the subject of any further personal violence and/or threats of violence by either any individuals and/or purported members and supporters of the governing BJP.
For the reasons outlined above the Tribunal is not satisfied that the applicant faces serio0pus harm arising from his older brother’s past activities.
The Tribunal finds that the applicant’s fears in this regard are not well founded.
Father’s treatment in the [Employer] and attack upon his parents following being run off the road
Additionally, the applicant relies upon his father having firstly been accused of causing the suicide of a colleague, his involvement in a traffic incident that resulted in an alleged attack upon his father and his mother (where she supposedly suffered a broken arm) and his father’s later arrest, imprisonment and subsequent release and the dismissal of the related murder charges. These issues relating to his father are relied upon by the applicant to again show that he and his family have been and will be the subject of persecution and discrimination because of their caste. The evidence before the Tribunal consisted of the applicant’s claims in this regard and some media reports none of which referred to any caste and/or political motivations for the investigations, charges, and the imprisonment and/or the dismissal of the charges against his father. Again, the only evidence before the Tribunal of this matter being either and/or politically and/or caste motivated is the subjective suspicions of the applicant who when questioned could not point to any evidence to support his claims but for the events having occurred and his belief that these events and others that he has complained of were all purportedly linked and so motivated.
The Tribunal is not satisfied that his father’s treatment by the authorities amount to targeted persecution involving serious harm motivated by his family’s caste and or being pursued for nay political or caste related reasons by the BJP and/or anyone else.
The applicant’s fears in this regard are also not well-founded.
Mother’s strip search
As to the applicant’s claims that his mother had been mistreated and strip searched when she attended the prison where her husband was incarcerated the only evidence offered in support of these actions being politically and caste motivated was an assertion by the applicant that his mother had been so searched while other visitors in attendance were apparently not so searched. In the absence of the applicant’s mother having provided further details by way of a Statement, Declaration and or appearing at the Tribunal to give oral evidence, the Tribunal is not satisfied that there was not another possible explanation by way of a security or other concern that resulted in her being strip searched. Therefore, the Tribunal does not accept that this search is evidence of caste and/or political discrimination against his family and another example of his so stated targeted discrimination and harm aimed at his family because of their caste.
The Tribunal finds that the applicant’s fears in this regard are not well-founded.
Younger brother’s apparent disappearance
The applicant claims that his younger brother who completed his studies in [Subject] and is [an Occupation 2] has vanished. His claim in this regard is that his brother has ceased all contact with his family and his present whereabouts are unknown. The applicant claims that his brother’s disappearance (apparently volunantarily) is further evidence of his family having been and is presently being targeted for harm by other community members and/or BJP members and supporters because of their caste. The applicant was again unable to point to any specific threats and or reasons for, or examples of his family having been targeted but for suggesting that this issue when considered with his other claims supports his fears of harm arising from the targeting of his family because of their caste.
Given the sheer numbers of members of the Sikh Punjab community who are of a similar caste and viewed in that society as ‘Dalit’ and although the Tribunal accepts that the applicant and his family have and may well face some society discrimination because of their social standing as ‘Dalits’, it is not accepted that the applicant and his family have been systematically and particularly singled out and targeted for harm because of their caste.
The Tribunal finds that the applicant’s fears in regards to his brother’s apparent disappearance as being an example of his family being targeted for persecution and harm because of their caste are not well-founded
Actual and/or Imputed Political Opinion – Anti-BJP and inability to relocate within India
The only evidence before the Tribunal as to the applicant and his family having been and being targeted for persecution and harm because of their caste is the matters raised in relation to his older brother which have been considered and addressed above at paragraphs 77 to 80 and his claims relating to the threats made to him by his girlfriend’s mother a BJP politician. There is no evidence before the Tribunal of any official threats having been made by representatives and/or supporters of the BJP to the applicant and/or his family. The Tribunal is satisfied on the evidence before it that the applicant’s girlfriend’s mother’s threats are simply personal threats arising from her disapproval of the applicant’s relationship with her daughter. Such threats are most likely motivated by his girlfriend’s mother’s personal view of him and his caste but the Tribunal is satisfied that they are not related to his girlfriend’s mother’s membership of the BJP.
The Tribunal for the reasons outlined above is not satisfied that the applicant faces a real chance of persecution involving serious harm from his girlfriend’s mother and/or the BJP.
The applicant’s fears in this regard are not well-founded.
Refugee criterion
Based on the information before it, the Tribunal rejects the applicant’s claims in their entirety and having considered all of the applicant’s claims both individually and cumulatively, and considering the cumulative effect of the claims and notwithstanding the subjective views held by the applicant as to his claimed fears, the Tribunal finds that the applicant does not face a real chance of persecution involving serious harm in the reasonably foreseeable future for reasons of race, religion, nationality, membership of a particular social group, or political opinion.
The Tribunal finds that the applicant’s fears of persecution are not well-founded as required by s 5J of the Act and therefore, the applicant is not a refugee within the definition of s 5H of the Act.
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) of the Act.
Complementary protection
Having concluded the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has considered whether the applicant is eligible for complementary protection as outlined in s 36(2)(aa) of the Act.
As noted above, the Tribunal is not satisfied that any of the applicant’s claims meet the refugee criterion. The Tribunal notwithstanding having found the applicant to have been truthful as to his subjective fears is equally for the same reasons not satisfied that the applicant meets the complementary protection criterion. The Tribunal having rejected the claims of the applicant in their entirety and given all the evidence before it does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, that there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
The Tribunal finds that the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Additional findings
Additionally, there is no suggestion that the applicant satisfies 36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa.
As the Tribunal has found that the applicant does not meet the refugee and complimentary criterions and does not satisfy the criteria in s 36(2) of the Act the Tribunal has not found it necessary to assess s 36(3) of the Act as to whether the applicant has a right to enter and reside in a country other than India.
DECISION

100. The Tribunal affirms the decision not to grant the applicant a protection visa.
David James
Senior Member
Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 2507

23 June 2023

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Immigration

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