2309769 (Refugee) - [2024] AATA 3047

2309769 (Refugee) [2024] AATA 3047 (29 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2309769
COUNTRY OF REFERENCE:                   India
MEMBER:Simone Burford
DATE:29 April 2024
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 29 April 2024 at 3:45pm
CATCHWORDS
REFUGEE – protection visa – India – ethnicity and membership of particular social group – marriage to woman from higher caste – threatened by well-connected in-laws, harassed by local authorities, arrested and beaten by police and disinherited by father – new claims of political opinion, religion and membership of particular social group – Sikh and supporter of Khalistan separatist movement – bisexual and same-sex activities at school and in Australia – physical and mental health and attempts at self-harm – inconsistent and implausible evidence – claims not raised in earlier proceedings – criminal conviction and imprisonment, student visa cancelled and immigration detention – no evidence of political opinion, activities or profile – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 65, 36(2)(a), (aa), (2A), 423A, 424A, 424AA
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth (1999) 197 CLR 510
AUB16 v MIBP [2017] FCCA 2634
BEH15 v MIBP [2019] FCAFC 184
Chand v MIEA [1997] FCA 1198
CQG15 v MIBP [2016] FCAFC 146
DAJ19 v Minister for Immigration [2020] FCCA 2142
DAO v MIBP [2018] FCFCA 2
GLD18 v MHA [2020] FCAFC 2
Guo Wei Rong and Pan Run Juan v MIEA (1996) 40 ALD 445
Iyer v MIMA [2000] FCA 52
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo (1997) 191 CLR 559
MIEA v Wu Shan Liang (1996) 185 CLR 259
MIMA v Lay Lat (2006) 151 FCR 214
MIMA v Rajalingam (1999) 93 FCR 220
MZAEN v MIBP [2016] FCCA 620
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60
Selvadurai v MIEA (1994) 34 ALD 347
SZBEL v MIMIA (2006) 228 CLR 152
SZRSN v MIAC [2013] FMCA 78; [2013] FCA 751
WAKK v MIMIA [2005] FCAFC 225
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 Home Affairs on 3 July 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Background
The applicant is a [Age] -year-old citizen of India.
He arrived in Australia as a dependant on his wife’s [Specified] visa [in] September 2015. He applied for the protection visa on 16 June 2023.
He was not represented when the application was before the delegate or the Tribunal.
Protection claims
Protection visa application
The applicant outlined his original claims for protection in the protection visa application lodged on 16 June 2023.
On 21 June 2023 the applicant was invited by the Department to provide additional information in support of his application for protection. The delegate’s decision indicates the invitation advised the applicant that their statement of claims lacked substantiating details such as dates and locations, and supporting documentation, in regards to their claims, and that no further evidence to support their claims had been provided. This correspondence also advised the applicant that, in order to be satisfied that their claims for protection were genuine, they were invited to provide more information about what happened to them in India, including dates, and locations of events. The delegate’s decision indicates no further information was provided. The applicant was not interviewed by the Department with respect to his protection visa application.
The applicant’s initial claims as contained in his application for protection were summarised in the delegate’s decision as follows:
·The applicant left his country because his life was threatened by his in-laws;
·The applicant received threats from his in-laws because he married their daughter while being from a lower caste (inter-caste marriage);
·The applicant approached the local authorities for assistance; however, they did not help him, and instead they harassed and pressured him to divorce his wife;
·The applicant escaped to New Delhi to seek safety but the Indian police arrested, beat and tortured him. The applicant’s friend bribed the police to secure his release while the applicant’s wife sought refuge at her friend’s house;
·If he returns to India, he will be killed by his wife’s family and community;
·The applicant’s in-laws are well-connected and could inflict harm on the applicant.
Other than his identity documents, the applicant did not submit any documents to the Department in support of his application for the protection visa.
Delegate’s decision
The delegate refused the application for the visa on 3 July 2023. A copy of the delegate’s decision was provided by the applicant with his application for review.
Due to the lack of detail in his application or supporting evidence for his claims, and his failure to address the lack of detail or supporting evidence through failing to provide further information and comment, the delegate was not satisfied that the applicant’s claims were genuine. In light of these concerns, the delegate found that the applicant’s claims were not credible.
The delegate did not accept that the applicant received harassment or harm from his wife’s family, community or local authorities because he married a woman from a higher caste. In light of that finding, the delegate was not satisfied that the applicant was a refugee or that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to India, the applicant will suffer significant harm.
Review application
The applicant lodged an application for review of the delegate’s decision with the Tribunal on 4 July 2023.
Hearings
Hearings in this application were held on 18 October 2023, 29 November 2023, 15 December 2023 and 12 January 2024. The hearings were conducted with the assistance of a Punjabi interpreter.
The applicant was initially invited to appear before the Tribunal on 20 September 2023. On 1 September 2023 he requested an adjournment on the basis that he needed additional time to find a representative and obtain evidence to support his application. He indicated this was difficult as his English language skills were limited.
The hearing was adjourned to 18 October 2023. On 1 October 2023 the applicant wrote to the Tribunal seeking a further adjournment of 2-3 months. He noted:
I find myself in a particularly challenging situation as I am currently detained, and the outcome of my case is truly a matter of life and death. During my time in detention, I have been diligently collecting additional crucial documents to support my case. Moreover, I have been actively searching for a non-profit representative who can assist me in presenting my case effectively. These efforts are essential to ensure that my appeal receives fair consideration, and I am granted the opportunity to state my case comprehensively. I kindly request that my email be taken into account when reviewing this extension request. The circumstances I am facing in the detention center are beyond my control, and the extra time would greatly assist me in preparing a strong and well-documented appeal.
Given this was the second request for an adjournment and the applicant was in detention, the Tribunal indicated it would not grant an adjournment but would instead hold the first hearing as an initial hearing to enable the Tribunal to explain the process to the applicant and to set a time for a further hearing to discuss his claims and take evidence.
That initial hearing was held at the Tribunal’s Perth Registry on 18 October 2023. The applicant attended in person.
At that hearing the Tribunal outlined the process and discussed with the applicant the provision of evidence. The applicant said he had a person who agreed to represent him, however, they haven’t made submissions yet. The Tribunal noted there was no representative on the record and stressed the importance of any representative registering with the Tribunal so they would be able to represent the applicant.
The applicant told the Tribunal at the initial hearing that he was still trying to obtain evidence to support his claims and that he was at risk due to links with the Khalistan separatist movement. The Tribunal noted that this did not appear to be a claim raised before the delegate and that the Tribunal would discuss that claim at the next hearing, noting that s 423A of the Act would require the Tribunal to consider the reasons why that claim had not been raised earlier.
A further hearing was scheduled for 23 November 2023. On 13 November 2023 the applicant requested a further 10 days adjournment as they ‘have been informed by someone that they can assist me but due to the shortage of time I am having trouble’.
On 14 November 2023, the applicant submitted a number of documents in support of his application. This included:
· Written submissions from the applicant including hypertext links to references; and
· An unsigned statement from [Mr A], a person claiming to have been in a same-sex relationship with the applicant.
In response the Tribunal asked the applicant to detail the contents of the media files he wished to submit and indicated that the Tribunal wished to take evidence from [Mr A] at the hearing.
The Tribunal rescheduled the hearing to 29 November 2023 to accommodate the applicant’s request for additional time. In response to the invitation the applicant indicated [Mr A] would not be available to appear as he was overseas ‘at the moment’ but would be available by phone. Contact details for [Mr A] were sought in response to this information and [Mr A] confirmed by email that he would attend by telephone. At the hearing the applicant submitted the following:
·An undated newspaper excerpt purporting to be a ‘disinheritance notice’.
·A statement from [Mr B], the applicant’s father, claiming the applicant had been ‘out of my control from 2018’ and stating:
Therefore I evict him from all my moveable and immovable property. Whoever deal with him himself will be liable. I or my family will not held responsible for any bad goods done by him. We have no relation with him from 2019.
The statement appeared to be attested to [in] August 2023.
·An undated screenshot of a text exchange with ‘[C]’.
·An undated letter from [an] ED Medical Officer, bearing the address ‘Emergency Department [Hospital]’ to [a named person] regarding the applicant’s admission to the Emergency Department [in] April 2017 with social/behavioural issues referred by GP. The letter noted the applicant had a history of depression and violence against his wife who had stated he had drunk pesticide. Also, a history of headaches with blurred vision and nausea/dizziness. His CT and bloods were normal. He was reviewed by psychiatry ‘who could not find an Axis 1 diagnosis’. The letter states:
Reports having dreams in which is he told his wife and family are cheating him which brings on the anger. He reports occasional visual hallucination of snake. He says these thoughts have been present since 2008 after head injury in India. No chronic headaches. Reports took 2 mouthfuls of pesticide but vomited immediate after 3 days ago. Reports occasional suicide thoughts.
(Errors in original.)
The letter indicates he was given medication for sleep and referred to his GP for a Mental Health Treatment Plan.
The applicant also provided a USB containing media files at the hearing. The content of those files is discussed further below.
The applicant gave oral evidence at the hearing. The applicant spoke briefly with [Mr A], however there was insufficient time to complete his evidence. In addition, the Tribunal had been unable to review the media files submitted by the applicant during the hearing. Accordingly, the hearing was adjourned to another day to allow further evidence to be taken and submitted material to be considered.
A further hearing was scheduled for 15 December 2023. At that hearing the applicant gave further evidence, however, attempts to contact [Mr A] were unsuccessful. The hearing was adjourned again to allow [Mr A]’s evidence to be completed.
On 28 December 2023 the applicant submitted a copy of [Mr B]’s government issued income tax card bearing his signature and a ‘non judicial’ certificate from Punjab issued [August] 2023 which appeared to indicate it was purchased by [Mr B] with respect to an affidavit and is stamped by a notary public.
A further hearing was scheduled for 12 January 2024. [Mr A] indicated that due to ‘personal reasons’ he was unable to give evidence via Teams but that he would provide an affidavit and would be available for an audio call.
On 2 January 2024 the Tribunal sent the applicant an invitation pursuant to s 424A of the Act to comment or respond to information concerning his criminal record, marriage and the late raising of claims for protection. The applicant was invited to respond to that information in writing by 12 January 2024 or at the next hearing. The information contained in that letter is dealt with further below. The applicant responded to the information at the hearing on 12 January 2024.
The Tribunal also took evidence from [Mr A] at that hearing, however, as discussed further below when information was put to [Mr A] regarding information before the Tribunal which raised concerns about the credibility of his evidence, he indicated he would not answer any further questions and disconnected from the hearing. Further calls to his number were not answered. Information relevant to [Mr A] was put to the applicant pursuant to s 424AA at the hearing. That information and the applicant’s response is also considered below.
Following the hearing, on 8 March 2024 the applicant provided further written submissions as follows:
I presented evidences, particularly related to my inter-caste marriage, which was not considered and overlooked as they are quite serious in terms of my life.
Recently, I learned about a friend who faced a sad end in India recently, he eloped to Australia after he married to an intercaste girl he was on constant threat upon marryinh her ,they were both here in XXXustralia and settled here good owning a small [company] and he always expressed his concern about danger to his life from time to time to me.
Now upon returning to India,he tragically lost his life.he was followed by group.of ppl.while on his way he was surrounded and shot in car . This situation has heightened my concerns about my own safety if I were to return. I fear persecution similar to what my friend experienced, and I believe my case deserves reconsideration.
I kindly request you to revisit my case, taking into account the genuine risks and challenges I may face if compelled to return to my home country.
The applicant’s claims, including the claim to be at risk due to being in an inter-caste marriage is considered further below.
Additional claims
Before the Tribunal the applicant raised significant new claims on an iterative basis.
In his written submissions provided on 14 November 2023 the applicant summarised his claims in the following terms:
1) The applicant raised the following reasons to the Department when submitting his protection application:
a)The applicant left his country because his life was threatened by his in-laws and by his father.
b)The applicant received threats from his in-laws because he married their daughter while being from a lower caste (Inter Caste marriage) and him being bisexual. He also fear for his for his father for being bisexual and seeing him parasite and blotch to society and culture.
c)The applicant approached the local authorities for assistance; however, they did not help him, and instead they harassed and pressured him to divorce his wife of his reasons of being from lower caste.
d)The applicant escaped to New Delhi to seek safety but the Indian police arrested, beat and tortured him. The applicant’s friend bribed the police to secure his release while the applicant’s wife sought refuge at her friend’s house.
e)If he returns to India, he will be harassed, tortured and killed by his wife’s family and his father.
f)The applicant’s in-laws are well-connected, and will inflict harm on the applicant due to police involving.
2) The applicant wishes to include new claims for his protection application, and he wants to discuss both the previous and new grounds together. The new grounds are related to his background and the journey to Australia.
a)The person applying is a Sikh man who is also a bisexual. He was always afraid and embarrassed to tell anyone about his sexuality while he was in a detention center because he was concern about his safety and bullying. He only told two other detainees whom he trusted, and they supported him in bringing up this matter in front of the AAT (Administrative Appeals Tribunal).
b)The applicant has made another new claim, stating that he is a strong political view and support of Khalistan which is separate country. He believes that if he returns to India, the government there will persecute him for his strong political opinion.
(Errors in original. Bolding added)
The Tribunal notes that the bolded part of the claim in 1(b) was not included in the claims made or reasons for seeking protection given in the application for protection or to the Department at any point prior to the delegate’s decision being made. As discussed with the applicant at the hearing, the Tribunal considers s 423A applies to these claims and those detailed in the ‘new claims’ in (2).
The applicant also submitted health records from detention and from prior to his conviction. When asked by the Tribunal what he wanted the Tribunal to draw from those materials he stated that the records show he has depression and anxiety. The Tribunal asked if he was making a claim with respect to having depression and anxiety and the applicant said it wasn’t in relation to going back to India but with depression, he could harm himself as he had tried in the past and that if he went back to India he will go back into depression and may see no way out.
ISSUES
The issues in this review are whether there is a real chance that, if he returns to India, the applicant will be persecuted for one or more of the 5 reasons set out in s 5J(1)(a) for the purpose of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to India, there is a real risk that he will suffer significant harm for the purpose of s 36(2)(aa) of the Act.
For the following reasons, the Tribunal has concluded that the decision to refuse the applicant a visa should be affirmed.
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.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
At the hearings, country information, including the latest DFAT Country Information Report: India dated 29 September 2023 (the 2023 DFAT Report) was discussed where relevant.
The relevant country information is discussed further below.
CONSIDERATION OF CLAIMS AND EVIDENCE
Applicant identity and country of reference
The applicant claims to be a citizen of India. The applicant provided a copy of his Indian passport to the Department. The delegate accepted the applicant’s identity. There is nothing before the Tribunal to suggest that the applicant is not the person identified in the relevant application for protection.
The Tribunal finds that the applicant is a citizen of India, which is also his receiving country for the purposes of the refugee and complementary protection assessments.
Evidence
According to the information provided by the applicant in his application for protection, he was born in [Village 1], Punjab, India. He is married and has one child born in [Year]. He has been separated from his wife since 6 June 2019. He told the Tribunal he has not had contact with them since that time. He is ethnically Sikh and a follower of the Sikh faith. He indicated that he speaks, reads and writes Punjabi and reads and writes English.
He said he went to school in [Village 1] but left at the end of [grade].
He has a father and brother in [Village 1], India. He has not had contact with them for 7 or 8 years (since around 2015). At that point he was in contact with his mother who has since passed away in 2020. He confirmed he had not spoken to his family since he was last in contact with his mother in 2015. He said his father owned a farm and was a farmer. His brother was married and did not work.
He indicated he was not in contact with relatives outside Australia. He listed 2 addresses in NSW where he lived prior to entering detention in June 2020.
The Tribunal asked how his mother had died and he said ‘this incident’ happened, his in-laws made trouble and his mother died of a heart attack. He said they also persecuted his brother and broke his legs.
The Tribunal asked how he had learned of his mother’s death and he said he had been told by a friend, [Mr G]. He also sent the applicant 2 videos of his brother’s legs being broken and told him about his in-laws. He said [Mr G] had texted him on his birthday [in] 2022 and he had called him back. The Tribunal clarified if that was when he had been told about his mother as well and he said he was giving him sympathy but at that time he was not aware of that. He confirmed this was in [2022]. He confirmed that he did not know about his mother before that time. The Tribunal notes that at a subsequent hearing he told the Tribunal he was told on his birthday in 2020.
The Tribunal asked why he left school at the end of [grade] and he said that there were some problems. When the Tribunal asked what the problems were, he said he mentioned them in his submissions.
In his submissions the applicant had stated:
·     Applicant is a bisexual individual. He has been like this since birth but first realised it when he was [age] years old and was in [grade]. He hasn’t mentioned his identity earlier to any of the government bodies fearing the discrimination and bullying like he faced in his country of origin. The applicant first realised about his sexual orientation at around when he was in [grade] and he felt like he had less interest in girls and is also never attracted to them in that way to which he was attracted to boys rather.
·     The applicant was always bullied in school by the boys as his behaviour was feminine and was forced to sit with girls where he was ignored by the girls as he was a boy.
·     There were 4 boys in the school who had the same sexual orientation as him and he was attracted to them and they were comfortable with him and accepted him. It was the first time in [grade] when he was taught by these boys to have sex with them and educated him on his gender. The applicant was comfortable around them and was performing sex with those boys.
·     It was not until later when his family was warned by his teachers or his schoolmates about his sexual orientation and the way he was. The family of the applicant spoke to him and he confessed that he believed he was bisexual and had a relationship with boys at that time. The family was really upset and the applicant was beaten by the family in rage as he was seen as a blot to the family but he was warned and given a chance to mend his ways and to have no contact with those boys.
·     The applicant was kept in house arrest for like 4 months and he was not allowed to leave the house and he was kept under vigilance, and was tortured from time to time.
·     After 4 months the applicant was allowed to leave the house and was followed when he went to meet his male friends to whom he was attracted. They were caught and all were beaten by his family and villagers and also informed the other guy’s family about their actions. The applicant was beaten again by the family and handed over to police to just teach him a lesson and was locked up for 2 days where he was tortured and illtreated by the cops and bullied for 2 days about his ways and actions. His family paid money to the police station to teach him a lesson as well.
At the November hearing the Tribunal asked the applicant about why he had left school and he said he was bisexual and his father didn’t want that. When asked what he did once he left school he said he did nothing because he wasn’t allowed to go outside for 2 and a half years. He said his uncle then came and made his father let him out and he went to work on the farm and then ‘he started to do the same thing he used to do a little bit’. At this stage he was living with his parents.
In 2014 he married. He said he knew his wife from school. He said she went to the same school but lived about 3-4 km away. After he left school she used to go to the college and he used to meet her on the way to the college and they talked. She was doing a Diploma in [Subject]. He said [in] November 2016 they eloped and married in Haryana. After they married, they moved to Faridabad where he was being supported by his wife. He said she had money in her bank account because her father was supporting her. She passed her IELTS (International English Language Testing System) test and then they decided to come to Australia. He said her father gave her the money during school. They were living on a friend’s farm for 3-4 days then they went to Mumbai for 3-4 months. The Tribunal asked where they went after Mumbai and he said his wife started doing her IELTS test and then she applied for [Country 1] and Australia and was approved for Australia so they travelled here in September 2015. He said his wife paid for the travel and the visa. After they arrived, they both worked.
The Tribunal asked about the money her father had given her and he said it was 22 lakhs and some jewellery. The Tribunal queried if this was her dowry and he said no because they married without their parents. He said they had a daughter in [Year] but he has not been in contact with his wife since June 2019 when he ‘left her’. At that time, she was living in [Suburb 1] with her sister, brother and mother. He said when he left the house his mother had been living there about 2 months. His friend [Mr A] was also living there. When the Tribunal asked about how the brother and sister had been living at the house he said they only came and stayed one or 2 days.
The Tribunal asked why he had left his wife and he said the reason was his mother-in-law. He said he and [Mr A] had been living in the same room for about a month or 2. He had moved in before his mother-in-law came to stay.
The Tribunal asked what happened and he said that he and [Mr A] had been sleeping together and his mother-in-law saw and started fighting with them. This was 2 or 3 days ‘back’ and she kept saying things and on 9 June 2019 he got angry and thought to kill himself. Then his wife stopped him and his mother-in-law called the police and they arrested him. He said his mother-in-law brainwashed his wife and it created a lot of mess for the family. The Tribunal asked if he was charged with anything, and he said it was ‘Dangerous of life of another person’. He was convicted and got 6 months prison and 6 months parole. The Tribunal asked if he was convicted by a jury and he said he was. He said his student visa was cancelled in August 2019.
The written submissions went on to state that the applicant’s in-laws have threatened to murder and beat him if he returns and the applicant’s family and in-laws and village people know that he is bisexual and has been in a relationship with another bisexual while married.
The Tribunal asked when he met [Mr A], and he said it was in [Venue] in 2017. He said [Mr A] had been in Australia a long time. He said they started ‘doing sex with each other’ not long after they met in a park or a car. He said [Mr A] was married but he was ‘not in the good books with her family’. He moved into the applicant’s house ‘on and off’ from October 2017. In April 2019 he had a fight with his family and moved into the applicant’s house.
He said after the incident at the house in June 2019 they had no contact. They next had contact in 2022 via [Social media]. He said [Mr A] had changed his number and was living in [Suburb 2] at that time. He said they then exchanged phone numbers. He said they had not had any contact other than by phone or [Social media]. The Tribunal asked where he was and he said he was in India and had left 2 months prior (September/October 2023).
At the last hearing the Tribunal asked the applicant when he had realised he was bisexual and he said it was in [grade]. He had been told not to sit with girls and that he looked like a girl. He said in [grade] he had sex with a boy named [Master H] at his farm. He said one day in [grade] the owner of the farm found them and informed his parents. He couldn’t recall exactly when this was. He said his parents kept him under surveillance. He said they kept him there for 2 ½ months and then his uncle came and they let him gradually go back to school. He said that he went out with [Master H] and the police came and beat him and he was in hospital. He said he had marks on his stomach from this. He said he was [age] years old at the time.
He said after this his father stopped talking to him and his family stopped sending him to school (in [grade]) but he attended school only for the annual exams until the middle of [grade]. He said people assumed he was gay because he was clean shaven and because of his walking style. He said people made bad comments about him and teased him.
The Tribunal asked if he had other relationships in India and he said no.
The applicant’s written submissions included the following claims or information:
He and the other villagers are members of the Other Backwards Castes (OBCs) who are considered by Indian society as a group that is socially and educationally backward. The Applicant practices the Sikh religion, a minority religion which comprises 1.7% of India’s population. He is from a rural village of approximately 1000 people who are predominantly Sikhs. The Applicant increasingly prayed more in the context of his incarceration, his current detention and fears about returning to India and is recorded to have disclosed to a psychologist “about finding comfort and relief in engaging in prayers in order to manage his stress/low mood. It appears that his mental health condition is increasing his reliance on the Sikh religion, and at the same time, his mental health condition is worsened by his increasing fears about being returned to India especially hoshiarpur.”
(Bolding added)
At the December hearing the Tribunal queried why the submissions referred to Hoshiarpur when he was from [Village 1] and the applicant said he did see a psychologist but the other information related to an incident which happened in Hoshiarpur where a similar thing happened. The Tribunal queried whether the quoted statement was in relation to him and he said it was in relation to an incident in Hoshiarpur. He said like his case a similar thing happened to 'this guy' and his in laws targeted him. He confirmed the quote was not from his psychology report but from someone else's records. The Tribunal expressed a concern that this might suggest the submissions were prepared for someone else's case. He said the reference was to an event in India that was similar to his.
The Tribunal briefly took evidence from [Mr A] at the November hearing. The bulk of his evidence was taken at the January hearing.
He told the Tribunal he had left Australia in October 2023 and returned to India.
He said he had met the applicant in October 2017 at [Venue]. Although an unsigned statement from him had been submitted, when asked if he had provided a letter or statement in support he said he had not. He said they got intimate shortly after and would spend time together at the applicant’s home in [Suburb 1].
At the next hearing he told the Tribunal they were boyfriends. He confirmed he would stay at the applicant’s home in [Suburb 1] and that his wife and in-laws were there. He said they were in contact until April 2019 when the applicant’s mother-in-law saw them in bed together. He had been living at the house for 3 months at that time. He said the applicant’s wife was aware of the relationship. He said after this he left and the applicant had a ‘big problem’. He said the applicant went to prison and later on when he found out he was in contact. The Tribunal asked if he saw him again before the applicant went to prison and he said ‘Yes, a couple of times’ near [Suburb 1]. At this stage he was living in a share house in [Suburb 3]. The Tribunal asked when the applicant went to prison and [Mr A] said he wasn’t sure ‘June, July, May’. The Tribunal asked if he knew why the applicant went to prison and he said it was a problem with the mother-in-law. He had tried to kill himself and had petrol splashed on his wife and daughter.
He said he didn’t see the applicant after he went to prison and couldn’t exactly remember when they reconnected. He said it was years after the applicant had gone to prison. He said the applicant had contacted him at an old contact number. This was about a year before he left Australia (October 2022 on [Mr A]’s evidence).
The Tribunal asked where [Mr A] was living at that stage, and he said he was at his recent address in [Suburb 3]. The Tribunal asked what the applicant told him, when they spoke, and he said he told him about going to prison and that he was in the detention centre. The Tribunal asked what their relationship was since then and he said they were just friends. The Tribunal noted the applicant had submitted records including videos of communications between the applicant and [Mr A]. The Tribunal asked if [Mr A] knew when those communications were from and he said he wasn’t sure. The Tribunal noted they included video chats with intimate content and asked when those were made and [Mr A] said he thought it was in around 2021 when he was living in [Suburb 3].
The Tribunal asked if this was after he reconnected with the applicant and he said that it was. The Tribunal asked where he was living now and he said he was in Gurdaspur, Punjab where he is living with his family.
The Tribunal asked if he was aware of the nature of the applicant’s claims and he said the applicant said his life is in danger because of a problem with family and especially because he is a bisexual and because of his in-laws. He said when he married his wife they ran away and his family had problems because they didn’t agree with the marriage.
He said that in India there is a problem when somebody is a bisexual. He said people die over here if they don’t agree with you, they take the law in their own hands. The Tribunal asked if he had any issues on return to India and he said no one knows about him and that his ex-wife was not aware of his relationship with the applicant.
The Tribunal asked what his visa status had been in Australia and he said he was on a student visa when he left in around October 2023. He said he left because he had ‘some family issues I had to sort out’. The Tribunal asked if he had a visa to return and he said he didn’t but he might apply again. The Tribunal indicated that records indicated he had departed Australia on 8 May 2023. He said that was correct. The Tribunal asked if he held a visa when he left and he said he did.
The Tribunal then put to him that records indicated his last visa had expired on 8 April 0221 and that he was sentenced to a term of imprisonment [in] April 2021. Records indicated that he was moved from prison to [Detention Centre] on 9 February 2023. The Tribunal asked if that was correct and the witness indicated he did not wish to answer any further questions and terminated the call. He did not answer attempts to reconnect the call.
Documentary and video evidence
As noted above, the applicant submitted evidence in support of his claims.
He submitted 2 videos showing a man on a road in a rural setting being beaten by several people. The video appears to have been taken by a bystander. The persons in the video are not identified and the date of the video is not identified. The applicant claims the man being beaten is his brother who was beaten because the applicant entered in to an inter-caste marriage with his wife.
The applicant indicated the video was taken by a passer-by and his friend [Mr G], sent it to him. He said [Mr G] found it on [Social media]. He said it was posted on a page for the area where events were posted. He said he didn’t know when his brother’s legs had been broken. He said he was sent the video and told him about the attack when he told him about his mother passing away. He said at the November hearing that this was in 2020. He was not sure when the video was taken; he said the video was sent to him in 2019/20.

As none of the material was translated but the video was relatively brief, the Tribunal asked the interpreter to translate the dialogue captured in the video at the December hearing. The interpreter indicated the video was difficult to hear as it involved persons shouting at each other, but the limited words spoken in the video included bystanders observing someone is being pushed. One man says ‘go away, whatever it is it is in relation to my brother, they are pushing me’. Someone else says ‘leave him, leave, him'. Another person says ‘sister-fucker’ and is swearing. Another person says ‘go away/let go, leave, leave’.
He said that there were audio recordings of threats from his family and his in-laws. The recordings were not translated. They indicate persons speaking to one another in a heightened manner. The Tribunal accepts they may be arguments between the applicant and his in-laws but is unable to place weight on them as evidence his in-laws threatened him in connection with his inter-caste marriage or bisexual claims noting the material was untranslated and having regard to other concerns with the credibility of these claims.
In addition, the applicant submitted a number of undated recordings of online chat videos between the applicant and a person he identified as [Mr A]. Those video-chats appeared to have been recorded when [Mr A] and the applicant were in separate locations. He said the videos were quite old and he thought they were from January 2021. He said at that time the Applicant was in Perth (in detention) and [Mr A] was in the community. He said they could be from before or after as well. He said most were from 2021, from when he was out from the prison in January. He said they were from after he finished his sentence in the prison and went to the detention centre. This would have been from early 2022. While the audio recordings were not accessible for all videos (due to file compatibility), the videos appeared to show the applicant and [Mr A] in conversation and engaging in intimate acts which the Tribunal would characterise as remote mutual masturbation. He said [Mr A] was aware they were being recorded and that he had sent them to the applicant in after he filed his case because the applicant didn’t have any proof. He thought that would have been in 2023. He said it wasn’t sure if it was before or after he left for for India. He also offered an undated screenshot of an undated text exchange with ‘[C]’ who he did not identify. The texts were in mixed languages and not translated.
In support of his claim that he was estranged from his family due to being bisexual and having entered an inter-caste marriage, he also offered a statement from [Mr B], who he claimed was his father and an excerpt from a ‘disinheritance notice’ from an unidentified newspaper. It is not dated. The applicant stated that newspaper excerpt was from 2014 when he got married. The Tribunal noted that the affidavit said the Applicant had been ‘out of control’ from 2019 and he said it may have. He did not know when the statement was made but his friend [Mr G] obtained it for him and he thought the affidavit or the newspaper article dated from 2014 or 2019. The Tribunal explained that it appeared from the markings on the document that it was attested to [in] August 2023.
In response to the Tribunal’s concern that it was unable to verify who the statement was from or how it had been obtained, the applicant offered a government identification for his father which the Tribunal is prepared to accept which bears the same signature and a non-judicial court document, mentioned above, which appeared to be purchased by the applicant’s father, [Mr B]. That document indicates the certificate was issued [in] August 2023, the date on which the affidavit was stamped as attested. This suggests the affidavit was attested by the applicant’s father [in] August 2023. In the Tribunal’s view that caused concerns that the documents were created for the purpose of the proceedings and did not support a claim the applicant is estranged from his father who it appeared had provided a statement in 2023.
On 2 January the applicant offered a letter from [Mr G], his friend in India, who he claimed provided him with the information from the village and relating to his father’s disownment. That letter states that [Mr G] has a close relationship with the applicant’s family and that his family ties were ‘frayed’. He said he observed a ‘palpable animosity’ by the applicant’s father toward him ‘stemming to his marriage to a woman of a different caste’. Noting ‘this union has seemingly marred their family’s reputation and standing, eliciting distain from his father’. That letter was accompanied by a similar a non-judicial court document, mentioned above, which appeared to be purchased by [Mr G] on 1 January 2024 and by Indian identity documents.
The letter goes on to state that he provides regular updates to the applicant including with respect to ‘recent unsettling incidents involving his brother’. He does not state what those events were but says what he has relayed is authentic and reliable. No contact details were offered.
Health information
The applicant also submitted health records from detention and from prior to his conviction. Those documents indicate the applicant has previously been admitted to emergency and reported attempts at self-harm. The letter from 2017 noted these reports and a history of depression. It did not report any mental health diagnosis but referred the applicant to his GP for a Mental Health Treatment Plan.
The reports from detention note a history of depression, stress and anxiety and adjustment disorder. They also record health issues arising from time to time requiring treatment or medication, including hypercholesterolemia requiring cholesterol medication, gastro-oesophageal reflux disease (GORD) requiring reflux medication, ear infections, and non-alcoholic fatty liver issues. With respect to his mental health issues the reports indicate he was seen by a psychiatrist in July 2023 who assessed his engagement was not suggestive of significant depression and he was a low risk of self-harm. Other records note his depression as a result of his mother’s death in July 2021, the fact he was close to her and the fact he was unable to satisfy her ‘dying wish’ of talking to her granddaughter. The records note the applicant reported she died of a heart attack when he was put in prison.
Adverse information
On 2 January 2024 the Tribunal wrote to the applicant pursuant to s 424A of the Act to invite him to comment or respond to information it considered would be the reason or part of the reason for affirming the decision under review. The applicant was invited to give comments on or respond to the above information in writing prior to 12 January 2024 or at the hearing on 12 January 2024. The applicant responded at the hearing.
The particulars of the information related to the applicant’s claimed background, including the circumstances of his marriage and the late raising of his claims for protection. The particulars were:
With respect to the applicant’s background:
a.Information before the Tribunal indicated that [in] July 2021 he was convicted of:
§One count of with intent to injure or annoy, administer unlawfully a noxious thing (petrol) – aggravated ([Ms I])
§Unlawfully doing an act likely to endanger the health or safety of a person ([Ms J])
oHe was sentenced to 12 months imprisonment for each offence to be served concurrently.
oHe was made the subject of a lifelong restraining order for the protection of [Ms I] which was not opposed by her.
oThis followed a trial before a jury where the applicant was found guilty of those offences. Information before the Tribunal included the sentencing remarks from the [District Court] [in] July 2021 when the applicant was sentenced for these offences.
oThe applicant claimed that [Mr A] was living with him and his wife and that their relationship was the cause of the events leading to his convictions, however there was no reference to [Mr A] in the sentencing remarks in relation to the offences or for any other reason.
oThe applicant told the Tribunal he had not been in contact with his family since 2015. He told the Tribunal at the second hearing on 29 November 2023 that he found out about his mother’s death from a friend who called him for his birthday [in] 2022 in which he claimed that his brother was being beaten by his in-laws.
oHe claimed to have suffered trauma as a child and violence from his parents as a result of homosexual or bisexual behaviour, however, the sentencing judge’s remarks note ([in] July 2021) that:
[Deleted].
oThe sentencing judge’s remarks indicate that at the time the offences occurred the applicant was on a call to his parents. This was in June 2019.
oThe applicant claimed his father was a farmer, however the sentencing judge’s remarks note that his father was a judge in India.
oThe sentencing judge’s remarks make reference to the applicant’s mother’s death, indicating he was aware of this in 2021.
With respect to the applicant’s marriage:
oThe applicant claimed to have married against the wishes of his wife’s family and to have eloped and married in Harayana. He claimed to have lived in Faridabad, Haryana and then in Mumbai prior to coming to Australia.
oThe applicant’s marriage certificate indicates that he was married [in] 2014 and the place of his marriage was [Temple] [Village 2]. Goggle maps indicates [Temple] is a Sikh temple in the village of [Village 2] which is [number] minute drive from his home village of [Village 1], which is also listed as his usual place of residence on the marriage certificate. His wife’s address is listed as Amritsar which is an hour and a half drive from the place the marriage occurred.
oPhotographs of the wedding which accompanied the student visa application for the applicant and his wife (with the applicant as a secondary applicant) appear to indicate a traditional wedding ceremony with guests in attendance and the applicant and his wife in traditional dress.
oThe applicant claimed to have married against his wife’s parents’ wishes, however the sentencing judge’s remarks says the marriage was arranged and they came to Australia because his wife wanted to study.
oIn support of her application for a student visa, the applicant’s wife included a statement indicating that she ‘got engaged as soon as my parents found a suitable match for me’ and that plans to study abroad were supported by their parents. This is consistent with the information contained in the sentencing remarks.
oThe applicant claimed he and his wife moved to Mumbai after their marriage and then his wife undertook her IELTS testing and applied for the visa. Records indicate the applicant’s wife achieved her IELTS test results in October 2014, prior to the marriage.
oAt the time of making the application for the student visa, in June 2015, the residential address listed for the applicant’s wife was Amritsar.
oThe applicant claimed to have met his wife because they attended the same school. He said she lived 3-4 km from the applicant, but they attended the same school. He told the Tribunal that after he left school he used to meet his wife on the way to college.
oDocuments submitted in support of the student visa application in 2015 indicate that from January 2011 until July 2014 the applicant’s wife was employed in Amritsar. She attended [University] in Amritsar from 2008-2011 and prior to that attended [College] in Amritsar from 2005-2008. She attended [Senior High School] in Amritsar from 2002-2005.
oGoogle Maps indicated Amritsar is around 90 km from [Village 1].
With respect to the late raising of claims for protection
oIn the context of the cancellation of the applicant’s student visa in September 2019 and the review before the Tribunal in August 2022 information indicates that he did not raise any issues to fear harm on return to India for any of the reasons now claimed before the Tribunal.
oIn the decision record affirming the cancellation of the visa, dated 2 August 2022, the Tribunal member noted:
When asked about whether he has any fears of returning to his home country of India, the applicant said he has been in Australia for a long time. He said his family has been through a lot, his father is unwell, his mother has passed away and the situation in India is currently bad and he is not sure what will happen to him.
oThe Tribunal on that occasion found that non-refoulment obligations did not arise with respect to the applicant’s return to India.
The applicant was provided with the following information with the invitation:
·A copy of the transcript for the proceedings at the [District Court] [in] July 2021.
·A copy of the applicant’s marriage certificate.
·A copy of the wedding photographs submitted with the student visa application.
·A copy of the applicant’s and his wife’s student visa application.
·A copy of the AAT decision record for review application 2203882 (the applicant’s visa cancellation review).
The Tribunal indicated the information was relevant because inconsistencies in the evidence the applicant had provided to the Tribunal and information provided in prior visa applications, Tribunal proceedings and court processes may lead the Tribunal to doubt the truthfulness of the applicant’s evidence and claims to fear harm due to having entered into an inter-caste marriage and to have been estranged from his parents due to being identified as gay or bisexual at school and to consider that his claims lack credibility. Further, the fact the applicant did not raise claims to fear harm on the basis of interfaith marriage, bisexuality, links to the Khalistan movement or being Sikh in the context of consideration of the cancellation of his visa or in the context of reports prepared during his trial and sentencing for his offences, raises concerns regarding the credibility of those claims and may lead the Tribunal not to accept them.
It may also cause the Tribunal not to accept that the applicant has a well-founded fear of persecution if he returns to India or that there is a real risk that he will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia due to being in an inter-caste marriage, due to being a bisexual or for any other of the reasons claimed.
The Tribunal noted that if it accepted this information this would be the reason or part of the reason for affirming the decision under review.
The applicant responded to this information at the hearing in January 2024 and the Tribunal went through each part of the information again with the applicant using the services of an interpreter.

100. In response to this information the applicant stated that [Mr A] was not mentioned in the sentencing remarks because ‘that argument was not about him’. With regard to the fact he had said he had not been in contact with his family since 2015 but was recorded as having been talking to them at the time of the offence in 2019 he said he was talking to his mum ‘but that was in hiding’ and he didn’t mention it to anyone else. He said that his wife mentioned at the hearing that he was in the car and talking to his mum prior to the offence. He said his father would beat up his mother if he knew.
101. With respect to the fact he had claimed he had found out about his mother’s death in 2022 when his friend called him on his birthday and he was grieving about it, he said it was correct and he did know about it in 2021. He said his friend told him. When the Tribunal pointed out he said his friend told him when he rang for his birthday in [month] but the sentencing remarks were from July 2021 he said he wasn’t sure but ‘I somehow knew’. The Tribunal notes that the applicant also indicated at a later hearing he had been about his mother’s death in November 2020. When asked where he was when he received the information, he said he was previously in prison and then in detention.
102. The Tribunal accepts that the Applicant may have been confused about when he was told. It is clear from the sentencing remarks he was aware of his mother’s death prior to mid-2021. However, the Tribunal had concerns about the information he said had been conveyed to him by his friend, including that it was his friend who told him of his mother’s death and the information he says he provided him following that conversation including the affidavit from his father and the newspaper article, noting that the affidavit bore a stamp indicating it had been attested to in August 2023. This was not consistent with the claim the document originated in 2014 or 2019 and had been provided to the applicant in November 2020.
103. With regard to the information in the sentencing remarks referring to a lack of trauma in his childhood he said he seriously faced really bad trauma during childhood, but he had not mentioned this because it was ‘a different thing’. He said he was facing something else and he would not have thought about his sexuality there.
104. He said his mother was good to him as a child. He said his father was not a judge but the reference to the word came up because one of his cousins is a judge.
105. With respect to issues raised with respect to the circumstances of his marriage and his claims regarding the background of the relationship he said he wanted to amend his claims to say they married in Haryana and lived in Mumbai. He said the place recorded on the marriage certificate is about 18 minutes from his parents’ house and that in the photos when you go to a Sikh temple you will meet a lot of people there. In his religion there are traditions and customs you need to follow but his father is not in these photos and the person giving the bride to the groom is his friend’s father.
106. When asked about the reference to the marriage being arranged in the sentencing remarks he said that when the Judge asked what was the reason behind the fight, his wife would not have mentioned it was an inter-caste love marriage and would have said it was an arranged marriage.
107. With regard to the addresses and background in the student visa application he said the person who did the paperwork for the visa might have done it but he didn’t know about it. He agreed she did the IELTS test in 2014 and then they applied for the visa. He said she was the one who handled everything.
108. With regard to the addresses used for his wife he said they were living nearby and using her parents’ address as the official address but they were not living there. With regard to the claims about having gone to school with his wife and re-meeting her while she was going to college when records said she was educated and worked in Amritsar, he said she moved from the village about 5^th grade and they had 2 houses: one in the village and one in Amritsar and she used to go on Monday morning and come back on Friday evening to the village. He agreed it was about 90 km to Amritsar.
109. With respect to the late raising of claims, the applicant said he had no information about how to apply when he moved from prison to the detention centre. He said he got a letter that mentioned he could apply for a visa. With respect to the earlier proceedings he said his hearing before the Tribunal was online and he couldn’t hear anything or understand anything so he didn’t understand what happened.
110. The Tribunal did not consider the applicant’s explanations were plausible or addressed significant inconsistencies in the evidence. The Tribunal’s concerns regarding the evidence and explanations offered by the applicant to the adverse information put to him are detailed further below.

111. At the hearing in January 2024 the Tribunal put the following additional information to the applicant pursuant to s 424AA of the Act.
112. The particulars of the information were:
·The applicant claimed to have been in a relationship with [Mr A].
·[Mr A] gave evidence before the Tribunal under oath that he left Australia in around October 2023. He said he held a student visa when he left Australia. He testified that prior to leaving he had not had contact with the applicant in person since the applicant initially entered prison in mid-2019. He said that about a year prior to his leaving Australia he and the applicant had recommenced contact via mobile.
·Departmental records indicate that [Mr A]’s last visa ceased on 8 April 2021. Records indicate that he was sentenced to a term of imprisonment [in] April 2021 and that on 9 February 2023 he was moved to [Immigration Detention Centre] on release from prison as he did not hold a visa.
·When this information was put to [Mr A] at the hearing he did not answer the question and indicated he did not wish to answer any further questions. He ended the call and did not answer a subsequent call to his provided number.
·The information suggests the applicant and [Mr A] were at [Detention Centre] at the same time as the applicant from February to May 2023; this was the period they claimed to be in contact with each other remotely.
·If [Mr A] was in prison until February 2023 it is reasonable to infer he did not have access to the mobile phone number on which the applicant claims to have contacted him in around October 2022 until he was released from prison in February 2023.
·Further, [Mr A] claimed to be living with the applicant in early 2019. At that time the applicant’s address was [Address, Suburb 1]. However, Department records indicate [Mr A] was living at [Address] at that time and then at [Address, Suburb 2]. Neither of these addresses is an address for the applicant.

113. The Tribunal indicated that this information is relevant because it may lead the Tribunal to doubt the truthfulness of evidence given by the applicant and [Mr A] concerning their relationship and claims to have been in a relationship and the applicant’s claims to fear harm due to having been identified as gay or bisexual.
114. The information may also cause the Tribunal to find [Mr A] is not a witness of truth and not to accept his evidence. This may also cause the Tribunal not to accept the applicant is bisexual or that there is a real chance the applicant would be harmed on the basis of being a bisexual.
115. If the Tribunal accepts this information it may be the reason or part of the reason for affirming the decision under review.
116. The applicant did not seek an adjournment and responded to the information at the hearing. He indicated that he did not know [Mr A] had been in prison and he didn’t know why he had lied to him. He said he didn’t know why he was lying but that ‘maybe my mother-in-law told his family as well’. He indicated that maybe his wife or mother-in-law did something and he is ‘trying to keep safe so he is not telling the truth’.
117. The Tribunal indicated it might be difficult for it to believe he was in the detention centre for a number of months at the same time as another member of the Sikh community who he knew, was in a relationship with and was in contact with without knowing they were both living in the same facility. The applicant said there were 6 different departments with different names and not everyone meets everyone, people are separated due to the type of crime they have committed. He said that maybe [Mr A] was there for a very serious crime.
118. The Tribunal’s concerns regarding the evidence offered by the applicant and [Mr A] and the applicant’s responses to the adverse information put to him at the hearing are detailed further below.
Analysis and findings
Credibility
119. In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of fact on relevant matters. The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility. In this context, the Tribunal is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions.[1]
[1] Summaries of the principles relating to credibility findings were provided by the Federal Court and Federal Circuit Court in the following decisions: BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 at [32]–[34] per Rangiah, Perry and Bromwich JJ; CQG15 v MIBP [2016] FCAFC 146 at [36]–[38] per McKerracher, Griffiths and Rangiah JJ; DAO v Minister for Immigration and Border Protection [2018] FCFCA 2 at [30] per Kenny, Kerr and Perry JJ; DAJ19 v Minister for Immigration [2020] FCCA 2142 at [69]–[70] per Nicholls J.
120. The courts have made it clear that it is important that the Tribunal be sensitive to the difficulties faced by asylum seekers and that it adopt a reasonable approach in making its findings of credibility.[2] Further, in assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[3]
[2] 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; Guo Wei Rong and Pan Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton (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.
[3] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at pages 43–44.
121. If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true.[4] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[5]
[4] MIMA v Rajalingam (1999) 93 FCR 220.
[5] Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at [348] per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.
122. However, the Tribunal is mindful that legal reasonableness is a requirement of lawful decision making.[6] In this regard, the Tribunal is guided by the court’s consideration of how credibility findings might be affected by legal unreasonableness.[7]
[6] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [4], [80, [89]; Minister for Immigration and Citizenship v Li [2013] HCA 18 at [26], [29], [63], [88].
[7] See for example the observations of the Federal Court on the principles applying to the assessment of credibility in BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 at [32]–[34] per Rangiah, Perry and Bromwich JJ; see also the discussion in SZVAP and Minister for Immigration and Border Protection [2015] FCA 1089 per Flick J.
123. Further, the Tribunal notes that a decision maker is entitled to consider whether an applicant subjectively holds a well-founded fear of persecution before examining whether such a fear is objectively well-founded or to proceed on the assumption that such a fear is held. If the decision maker finds on the evidence that the applicant does not have a genuinely held subjective fear there will be no need to consider whether there is an objective basis for the claimed fear or, indeed, whether aspects of the claims are satisfied.[8]
[8] Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]–[34].
124. The Tribunal notes that where there is a finding that there is no subjective fear of persecution, this may lead to a conclusion that the Tribunal finds the claims not to be credible. In this respect the Tribunal has had regard to the Tribunal’s Migration and Refugee Division ‘Guidelines on the assessment of credibility’, issued in July 2015, in particular [8], [13], [17]–[19] and [27]–[28].
125. Section 5AAA of the Act clarifies that it is the responsibility of an applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. Applying this section, the Tribunal does not have any responsibility or obligation to specify or assist in specifying particulars of the claim or to establish or assist in establishing a claim. This is consistent with the well-settled proposition that it is for an applicant to make their own case.[9]
[9] Prasad v MIEA (1985) 6 FCR 155 at [169–70]; SZBEL v MIMIA (2006) 228 CLR 152 at [40]; Re Ruddock; Ex parte ApplicantS154/2002 [2003] HCA 60 (Gleeson CJ, Gummow , Kirby, Callinan and Heydon JJ, 8 October 2003) at [57] and [1]; WAKK v MIMIA [2005] FCAFC 225 (Marshall, Mansfield and Siopis JJ, I November 2005) at [73]; MIMA v Lay Lat (2006) 151 FCR 214 at [76]; and Abebe v Commonwealth (1999) 197 CLR 510 at [187].
126. Section 423A of the Act provides for circumstances in which the Tribunal is required to draw an adverse inference about new claims or evidence. If an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, then the Tribunal is to draw an inference unfavourable to the credibility of that claim or evidence, if it is satisfied that the applicant does not have a reasonable explanation why the claim was not made or evidence was not presented before the primary decision was made.
127. The Tribunal has carefully considered the claims of the applicant in his original application for protection and his subsequent application to this Tribunal, individually and then cumulatively.
128. As noted earlier, the mere fact that a person claims to fear persecution for a particular reason does not establish either the genuineness of the asserted fear, that it is well-founded or that it is for the reason claimed. It is the responsibility of an applicant to specify all 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 the claim. The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility.
129. The Tribunal has significant concerns about the credibility of the applicant’s claims and the evidence offered in support of those claims. The Tribunal had serious concerns regarding:
·The late raising of claims with respect to bisexuality, political beliefs associated with the Khalistan separatist movement, mental health and religion as a Sikh.
·Inconsistencies in the evidence from the applicant and [Mr A] concerning the timeline of the relationship and their personal circumstances.
·The fact there was no mention of the relationship between [Mr A] and the applicant and their interactions with the applicant’s in-laws in material relating to the applicant’s conviction.
·The fact the applicant’s account of events leading to his conviction and his personal background was inconsistent with the account and history documented in material relating to the applicant’s conviction, including the sentencing remarks.
·Inconsistent and implausible evidence regarding the background to the applicant’s marriage and the fact his account is not supported in material relating to his and his wife’s student visa application or in the material relating to his conviction.
·The fact none of these claims, including those associated with inter-caste marriage were raised in earlier proceedings considering non-refoulement issues (where it is reasonable to expect such claims would be raised by the applicant).
·The lack of any satisfactory explanation from the applicant to address or allay these concerns when raised by the Tribunal.

130. These concerns, considered cumulatively, caused the Tribunal not to accept the applicant’s core claims.
131. Among the most significant of the Tribunal’s concerns was that with the exception of the claim regarding harm arising from having entered into an inter-caste marriage, none of the claims raised before the Tribunal were raised before the primary decision was made by the delegate. Further, those claims were not raised in the context of prior proceedings regarding the cancellation or refusal of the applicant’s visas in applications where non-refoulement issues arose for consideration. Further, the claims were not raised in the initial hearing before the Tribunal but after several adjournments were sought on the basis of seeking legal advice and later evidence.
132. The applicant’s explanation for the delay in raising these issues was that he was concerned about people at the detention centre becoming aware that he was bisexual (as the prior proceedings had been heard remotely) and he was not sure how to raise the claims. The Tribunal did not consider the explanations offered by the applicant were satisfactory. While the Tribunal can accept that a person may be concerned about raising or discussing issues relating to their sexuality, the Tribunal does not consider this would have prevented the applicant raising those claims with the Department in his application which was submitted privately, or in prior hearings where he was invited to raise fears about returning to India. Noting that s 423A applies to those claims not raised and evidence before the primary decision is made, the Tribunal draws an adverse inference with respect to the new claims as detailed further in this decision.
133. The late raising of the applicant’s claims is not the only basis on which the Tribunal had serious concerns regarding the credibility of the applicant’s claims.
134. The Tribunal also had very significant concerns about claims relating to the relationship between the applicant and [Mr A]. As noted above and as put to the applicant at the hearing, there were marked inconsistences or omissions between the history of the claimed relationship and contemporaneous records of the applicant and [Mr A]’s circumstances, including that [Mr A] was not mentioned in court material relating to the offences which the applicant claimed occurred due to discovery of that relationship by the applicant’s in-laws and at a time when [Mr A] claimed to have been living with the applicant in the house the applicant shared with his wife, daughter and in-laws. The Tribunal does not consider it is plausible that during a criminal investigation and trial into the assault on the applicant’s wife and daughter which included consideration of psychology reports concerning the applicant, the issue of him being in a bisexual relationship with [Mr A] living together in the same house with his mother-in-law and wife would not be mentioned or that his claimed history of past harm in India would not have been raised in this context.
135. There were also significant inconsistencies between the applicant and [Mr A]’s evidence regarding their own personal histories and immigration records. This included that they were detained at [Detention Centre] at the same time for a number of months prior to [Mr A] giving evidence from India to the Tribunal hearings. In addition, information indicated [Mr A] gave false evidence regarding when he left Australia and his visa status prior to leaving. Further [Mr A] gave apparently false evidence that he was living in the community during a period where records indicate he was incarcerated. He refused to answer questions when these matters were put to him and the Tribunal finds he was not a witness of truth. Given the extent of the concerns with the evidence he gave under oath the Tribunal does not accept his evidence.
136. Further, given inconsistencies regarding the timing and nature of the relationship, including the fact the applicant claimed he reconnected with [Mr A] on [Social media] at a time records indicate [Mr A] was in prison, the Tribunal does not accept the video chat evidence between the applicant and [Mr A] evidenced a genuine bisexual relationship and finds that the evidence was manufactured for the purposes of supporting the claim for protection. That is not a finding the Tribunal makes lightly. However, as the videos do not show [Mr A] and the applicant interacting other than remotely, and given the other discrepancies put to the applicant at the hearing and detailed above, the Tribunal is unable to place any weight on that material as genuine evidence.
137. In addition, there were considerable inconsistencies in the applicant’s evidence to the Tribunal regarding his circumstances and claims and those contained in the submissions. This included with regard to his sexual history and claimed instances of harm in India at the hands of his father which he told the Tribunal commenced in [grade] but which his submissions indicated had occurred in [grade].
138. The submissions also included inconsistent information regarding the applicant’s marriage (such as having been married in Faridabad rather than Gurdaspur) and included biographical details which appeared to relate to another applicant (such as living in Hoshiarpur).
139. In considering these issues the Tribunal has had regard to the Tribunal’s Migration and Refugee Division Guidelines on the Assessment of Credibility (July 2015) and the Guidelines on Vulnerable Persons (November 2018).
140. Concerns regarding the credibility of the applicant’s claims are considered further below.
Consideration of claims
141. The Tribunal has carefully considered the claims of the applicant in his original application for protection and his subsequent application to this Tribunal, individually and then cumulatively.
142. The Tribunal makes the following findings:
·The applicant is from [Village 1], Gurdaspur, Punjab, India;
·His father and brother remain living in the village where he grew up;
·He is a practising Sikh as are his family members.

143. For the reasons outlined below, given a lack of supporting evidence and inconsistent evidence regarding the applicant’s family background, the Tribunal does not accept the applicant is a member of an Otherwise Backward Caste or that he has ever suffered harm on that basis.
144. The Tribunal had concerns regarding other aspects of the applicant’s core claims which are detailed further below.
Claims relating to inter-caste marriage
145. In his original application for protection and before the Tribunal the applicant claimed to be at risk of harm on return to India from his wife’s family due to having entered into an inter-caste marriage without their consent. He claimed that his brother had been beaten by his wife’s family due to the marriage though he was unsure of when this occurred and that he left India with his wife due to the risk of harm from his in-laws. He also claims to be at risk from his family who do not approve of the marriage.
146. The Tribunal does not accept the applicant and his wife were in an inter-caste marriage entered into without the consent of their parents or that the applicant is at risk of serious or significant harm from his family, his in-laws or wife’s extended family on return to India on that basis.

181. The applicant did not provide any evidence of activities in support of Khalistan separatism or association with groups promoting that cause. In light of the lack of any such evidence and in light of credibility concerns with the applicant’s core claims the Tribunal does not accept he was associated with Sandeep Singh Sidhu or Hardeep Singh Nijjar whose death was the subject of widespread international media. The Tribunal does not accept that the applicant would be targeted by the authorities in India, or by any group or person for being, or being perceived to be a Khalistan separatist or an anti-government activist on return to India now or in the reasonably foreseeable future. The Tribunal does not accept that the applicant had conversations with Hardeep Singh Nijjar or Sandeep Singh Sidhu or lawyers educated at Oxford University who were later killed and does not accept he would be imputed with such an association.
182. Despite being provided with numerous opportunities to provide supporting information, the applicant was unable to provide any details of involvement with or support for the Khalistan movement since he has been in Australia or previously in India. Nor did he provide any evidence of activities which might lead him to be imputed by authorities to hold views sympathetic to or supportive of Khalistan separatists.
183. This claim was not raised until the initial hearing before the Tribunal. The applicant was unable to offer any satisfactory reason why his claims to be a Khalistan separatist or to fear harm on the basis of being imputed to be a separatist were not raised in his application for protection or prior to the primary decision being made. The Tribunal draws an adverse inference from the late raising of this claim and considers the applicant does not have a genuine subjective fear of harm in India as an actual or imputed Khalistan separatist.
184. Further and in any event, given the lack of evidence to support these claims and overall concerns regarding the credibility of late claims raised by the applicant before the Tribunal, the Tribunal does not accept the applicant is, or would be imputed to be, a Khalistan separatist and finds he does not face a real chance of harm on this basis on return to India now or in the reasonably foreseeable future.
Sikh faith
185. DFAT country information regarding the Sikh community in India suggests that Sikhism is the dominant religion in Punjab. There are also significant populations of Sikhs in nearby states such as Haryana, Delhi, Rajasthan, Uttar Pradesh and Uttarakhand and there are Sikhs all over the country.[13] Sikhs commonly work in many industries, notably agriculture, transport and business and are represented at senior political levels and in the armed forces.[14] Country information suggests that Sikh men in particular are readily identifiable because of their turbans and long, full beards. This visibility means that they are a common sight in the streets as well as in media and entertainment.
[13] 2023 DFAT Report at [3.60].
[14] 2023 DFAT Report at [3.61].
186. DFAT goes on to assess that:[15]
Sikhs in India generally face a low level of official and societal discrimination and violence. This may be because most Sikhs live in Punjab, which is a majority Sikh state, and Sikhs outside of Punjab have strong communities based around their places of worship. However, DFAT is not aware of violence or discrimination commonly occurring against Sikhs in other parts of India.
[15] 2023 DFAT Report at [3.63].

187. This assessment is consistent with that of the UK Home Office which notes that Sikhs generally have freedom to practise their faith, have access to education and employment and are represented in the political sphere.[16] That goes on to state that in general ‘Sikhs in India are unlikely to face state treatment which is sufficiently serious by nature and repetition that it would amount to persecution or serious harm’.[17]
[16] At 2.4.17.
[17] At 2.4.20.
188. The Tribunal accepts that, consistent with country information cited in the applicant’s submissions, instances of violence against Sikh’s has occurred, however the country information considered as a whole does not suggest such instances amount to a real risk or real chance of harm. With respect to societal treatment the UK Home Office reports that incidents of communal violence against Sikhs are less frequent than against other religious minorities and that while some Sikhs face localised harassment by non-state actors, including Hindu nationalists, ‘generally, Sikhs living in and outside Punjab do so safely and integrate socially into their communities’. The report goes on to state that:[18]
Whilst there are some reported incidents against members of the Sikh community, relative to the size of the Sikh population in India, they are, in general, unlikely to be subject to treatment or discrimination by non-state actors that is sufficiently serious by its nature or repetition to amount to persecution or serious harm.
[18] 2.4.35.

189. He said his great-grandfather was shot as a Martyr and had been killed and the Canadian Prime Minister had spoken about these things. He also said that a temple had been damaged in Melbourne and ‘they’ had done it themselves, but they blamed the Sikhs for it. He said the Modi government had been targeting Sikhs and this had been reported in the media.[19]
[19] Sikh activist accuses India of ‘transnational terrorism’ after US foils plot to kill him | US news | The Guardian
190. The Tribunal accepts the applicant would be identified as a Sikh in India. The applicant did not claim to have suffered harm in the past based on his Sikh religion in India. While he citied instances of violence against members of the Sikh community in India and overseas in the context of Khalistan separatism in particular, having regard to the size of the population of India, the Tribunal considers those instances do not represent a real chance of harm to members of the Sikh community generally. While high profile Sikh supporters of Sikh political movements, in particular the Khalistan separatist movement, may face an elevated risk of harm, the applicant provided no credible evidence that he had any such profile and there is no information before the Tribunal to suggest he would be imputed with such a profile on return to India now or in the reasonably foreseeable future.
191. Again, this claim was not raised until proceedings before the Tribunal. There was no explanation for the late raising of the claim, noting the applicant is born to a Sikh family and has been Sikh since birth. The Tribunal draws an adverse inference from the late raising of this claim and considers the applicant does not have a genuine subjective fear of harm in India as a Sikh. Further and in any event, the Tribunal considers based on relevant country information that the applicant does not face a real chance of serious harm on the basis of his Sikh faith in India.
Claims related to mental health
192. The applicant claimed that as a result of his mental health history and the impact of a return to India there was a real chance he would harm himself due to a history of depression and other mental health issues. In summary he claimed that:
·He will be teased or taunted because he is bisexual and this will lead to a recurrence of his depression on return to India;
·There are inadequate mental health services available in India;
·He may harm himself if his depression returns.

193. In written submissions he stated that:
It is open for this Tribunal to find that each of these likely scenarios means that that if the Applicant is returned to India, there is a real chance that he will suffer serious harm within the meaning of s 5J of the Act for reasons of his membership of a particular social group, being persons living with mental and/or psychosocial conditions, impairments or illnesses in rural Hoshiarpur, India.

194. As noted above, the applicant confirmed that references in the submissions to Hoshiarpur related to another person and he is not from Hoshiarpur. While it was not clear to what extent the material in the submissions related to another person, the Tribunal considered the submissions as being offered in relation to the applicant.
195. Country information suggests that there is a shortage of trained mental health workers in India which means that not everyone who needs care can access it. Mental health care is more likely to be accessible in large cities, while healers and other non-professionally qualified people may provide care in rural areas.[20] DFAT assesses that:[21]
people living with mental illness and/or neurodiversity face a low risk of official discrimination, except to the extent that they may not be able to access appropriate healthcare. This is true of many Indians with various medical issues, as outlined in the section on healthcare. Indians living with mental illness and/or neurodiversity face a moderate risk of societal discrimination.
[20] 2023 DFAT Report at page 12.
[21] 2023 DFAT Report at page 12; see also UK Home Office Country Policy and Information Note, India: Medical and Healthcare Provision, October 2020.

196. The Tribunal accepts on the evidence that the applicant suffers or has suffered from depression, anxiety and ‘adjustment disorder’. The available medical reports indicate that in July 2023 he was assessed by a psychiatrist not to be exhibiting signs of significant depression.
197. Notwithstanding these recent assessments, the Tribunal accepts his return may cause him anxiety and may lead to depression. The Tribunal discussed with him that the fact he may harm himself on return to India may not give rise to a claim for protection because it was not as a result of any act directed at him or harm caused to him. He said that the facilities were not good there and people would taunt him and he would be so troubled he would harm himself.
198. The Tribunal finds on available country information that the applicant would not be denied access to mental health services in India for any essential and significant reason arising under s 5J of the Act but rather because of inadequate or less well funded public resourcing of health care services in India. Accordingly, his lack of access to such services would not meet the requirements of s 5J of the Act.
199. The Tribunal is also not satisfied the applicant would be deterred from seeking treatment due to social stigma in India, noting he has sought mental health treatment in the past and did not offer any evidence to suggest he would be deterred from doing so in the future due to stigma. Nor would he be denied the capacity to subsist in India on the basis of his mental health history on the evidence before the Tribunal. There is no medical information to suggest the applicant would be unable to work due to his mental health condition or that his condition would present in such a way that, based on country information, he would be denied employment or other basic services in India because of his depression or other mental health issues. The Tribunal finds there is no real chance he would be seriously or significantly harmed on this basis.
200. The Tribunal does not accept he faces a real chance of serious or significant harm for any of the reasons claimed associated with his mental health now or in the reasonably foreseeable future on return to India.
Claims related to being a member of an Otherwise Backward Class (OBC)
201. As noted earlier, the applicant claimed to be from [Caste] but offered no credible evidence to support this claim. In written submissions he claimed to be at risk of harm due to being a member of an OBC. Those claims appeared to be separate from his claim to have entered an inter-caste marriage.
202. The claims regarding the applicant’s risk associated with being a member of an OBC are included in a summary which also refers to him having ‘lived his entire life in hoshiapur’. As discussed with the applicant at the hearing those references to hoshiapur do no appear to relate to him as he has never lived in Hoshiapur and give rise to a concern that the submissions in fact relate to another person. Further the applicant did not raise any claims to have suffered harm as a member of an OBC (aside from his claims relating to his marriage which the Tribunal does not accept) in evidence before the Tribunal. Nor did he articulate any specific fears he would suffer harm on return to India on the basis of being a member of an OCB (aside from his intercaste marriage claims).
203. The Tribunal accepts that most Indians identify as members of Scheduled Castes, Scheduled Tribes or OBC with 35% of Indians identifying as members of that caste.[22] However, there was no evidence to support a claim the applicant was a member of an OBC nor that he has suffered harm as a member of an OBC in the past. He did not make any specific claims before the Tribunal to fear harm due to being an OBC on return to India.
[22] Measuring caste in India | Pew Research Center | Decoded
204. To the extent the applicant’s submissions raised a claim to fear harm as a member of a particular social group of OBC’s the Tribunal does not accept that the applicant is a member of an OBC or that he has or would face a real chance of harm on this basis on return to India from Indian authorities or any other person now or in the reasonably foreseeable future.
PROTECTION ASSESSMENT
Does the applicant meet the refugee criterion?
205. Based on the evidence before it, the Tribunal finds that the applicant’s claims that there is a real chance that, if he is returned to India, he would be persecuted by his wife’s family, his family, Indian authorities or elements of Indian society either or both as a bisexual or as a person who entered into an inter-caste love marriage lacked credibility.
206. Further, based on the evidence before it, the Tribunal finds that the applicant’s claims that there is a real chance that, if he is returned to India, he would be persecuted by Indian authorities or Hindu nationalists due to the real or perceived support of Khalistan separatism, Sikh nationalism or for any other perceived political opinion also lacked credibility.
207. Further the Tribunal found that the applicant’s claim to fear harm as a Sikh was not genuinely held and in any event was not well-founded. There was no real chance he would be harmed on the basis of his Sikh faith on return to India now or in the reasonably foreseeable future. Similarly, the Tribunal has found the applicant’s claims to fear harm as a member of an OBC are not credible and he does not face a real chance of harm on that basis now or in the reasonably foreseeable future.
208. The Tribunal also found the applicant would not face a real chance of serious harm on return to India on the basis of his mental health issues.
209. The applicant did not claim he would be persecuted for any other reason on return to India and the Tribunal finds based on the information before it that he would not be.
210. The Tribunal, finds that considered individually and cumulatively, there is nothing to suggest that the applicant would face persecution now, or in the reasonably foreseeable future, as a result of either or any of his claimed grounds.
211. The Tribunal is not satisfied the applicant has a well-founded fear of persecution for any of the reasons set out in the Act.
Does the applicant meet the complementary protection criterion?

The Tribunal has also considered the application of s 36(2)(aa) to the applicant’s circumstances. If a person is found not to meet the refugee criterion in s 3(2)(a), they may nevertheless meet the criteria for a grant of a protection visa if they are a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm.
The Tribunal notes the threshold for the real risk element of the complementary protection criterion that s 36(2)(aa) is the same as that for the real chance test in the refugee criterion s 36(2)(a) of the Act. The Tribunal further notes that the necessary and foreseeable consequence element at s 36(2)(aa) of the Act attaches to the risk of significant harm rather than the actual occurrence of the significant harm.

214. As noted above in relation to the refugee criterion, the Tribunal accepts that the applicant may feel distress on return to India, and that he may suffer from depression or other mental health issues. While the Tribunal accepts the applicant may suffer emotionally on return to India, the Tribunal does not accept those circumstances give rise to any claim for protection.
215. With respect to complementary protection, the Tribunal notes that, in SZRSN v MIAC (SZRSN), it was claimed significant harm would arise from separating the applicant from his Australian children. The Federal Court (agreeing with the (then) Federal Magistrates Court) found in this case that harm arising from the act of removal itself will not meet the definition of ‘significant harm’ in s 36(2)(aa).[23] The reasoning applied by his Honour has recently been upheld by the Full Court of the Federal Court.[24]
[23] [2013] FCA 751 (Mansfield J, 6 August 2013) at [48]–[49], upholding and citing the reasoning at first instance of SZRSN v MIAC [2013] FMCA 78 (Driver FM,1 March 2013) at [61]–[65].
[24] GLD18 v Minister for Home Affairs [2020] FCAFC 2 (5 February 2020) (Allsop CJ and Mortimer JJ, Snaden J agreeing) (GLD18).
216. The decision turned on the relationship between various aspects of complementary protection provisions. Firstly, the Court had regard to the reference in s 36(2)(aa) to Australia’s ‘protection obligations’ as referring to the obligation to afford protection to a non-citizen where the harm faced arises in the receiving country, rather than in the State where protection is sought.[25] Secondly, the Court reasoned that the qualifications in s 36(2B) expressly refer to harm ‘in a country’ which is necessarily the receiving country if the circumstances of s 36(2B)(a) (relocation) and s 36(2B)(b) (protection from an authority) are to have any application.[26]
[25] SZRSN v MIAC [2013] FCA 751 at [48] and SZRSN v MIAC [2013] FMCA 78 at [61]–[62].
[26] SZRSN v MIAC [2013] FCA 751 at [48] and SZRSN v MIAC [2013] FMCA 78 at [63].
217. Further, the Court noted the circularity in the operation of s 36(2)(aa) requires that the real risk of significant harm must arise ‘as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country’. The Court stated that the fact that the significant harm must be a consequence of removal strongly suggests that the removal itself cannot be the significant harm.[27] The Federal Court also noted that being separated from one’s children (in that case) is not an ‘act or omission’ as required by the relevant definitions of significant harm, but a consequence of an act. The relevant act is the act of removal from Australia.[28]
[27] SZRSN v MIAC [2013] FCA 751 at [48] and SZRSN v MIAC [2013] FMCA 78 at [64].
[28] SZRSN v MIAC [2013] FCA 751 at [47].
218. Lastly, the Court in SZRSN had regard to the ‘intention’ requirements in the s 5(1) definition of ‘degrading treatment or punishment’. The Court reasoned that separation from family (in that case, children) is the consequence of removal, and a consequence cannot be said to have an ‘intention’, so the act of removal itself cannot be said to be perpetrated by the State with the intention of causing ‘extreme humiliation that is unreasonable’.[29]
[29] SZRSN v MIAC [2013] FCA 751 at [48] and SZRSN v MIAC [2013] FMCA at [65].

As such it appears that although the risk of significant harm envisaged by s 36(2)(aa) must arise as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, s 36(2)(aa) will not be engaged by harm inflicted by the act of removal itself.[30]
[30] SZRSN was distinguished on its facts in MZAEN v MIBP [2016] FCCA 620 (MZAEN) (Judge Riley, 24 March 2016), where a mother and her child claimed they would suffer significant harm as a result of being separated from one another in different receiving countries. The Federal Circuit Court commented in obiter that it may not be entirely correct that the consequences of the removal cannot be significant harm, given that the focus of s 36(2)(aa) is on the necessary and foreseeable consequences of the removal: at [49]–[50]. This aspect of MZAEN was followed in AUB16 v MIBP [2017] FCCA 2634 (Judge Riethmuller, 31 October 2017), a case involving a family unit consisting of 2 Malaysian citizens and 2 Nigerian citizens. However, neither judgment considered this issue in detail, nor the intention element of the definitions of ‘significant harm’. The Full Court in GLD18 v Minister for Home Affairs [2020] FCAFC 2 cast doubt on the distinction drawn in MZAEN and affirmed the approach in SZRSN, at [67].

220. Further, in GLD18 v Minister for Home Affairs (GLD18),[31] the Full Court confirmed the principles in CSV15 v MIBP [2018] FCA 699 and CHB16 v MIBP [2019] FCA 1089 that ‘significant harm’ does not include self-harm or harm the applicant suffers arising from mental illness where such harm arises by reason of the applicant’s removal to their home country and not due to harm intentionally inflicted on an applicant by ‘others’.[32]
[31] GLD18 v Minister for Home Affairs [2020] FCAFC 2 (5 February 2020) (Allsop CJ and Mortimer JJ, Snaden J agreeing) (GLD18), at [88]–[89].
[32] See also FMN17 v MICMSMA [2020] FCA 326.
221. As noted by the Full Court in GLD18:[33]
[33] at [50] per Allsop CJ and Mortimer J.
The complementary protection criterion is not intended to be used to address the many and varied circumstances in which – in the framework of ordinary human experience – it may seem to be unfair, immoral, deeply upsetting or disturbing for a person to be removed from Australia against her or his will.

222. While access to mental health treatments may be less widely available than in Australia, country information does not suggest a real risk that persons suffering from anxiety or depression would be subject to significant harm including cruel, degrading and inhuman treatment. Further, the Tribunal finds that neither the social stigma which may be associated with having a mental health condition nor the more limited access to mental health services in India meet the thresholds for significant harm in the applicant’s circumstances.
223. The Tribunal has found there is no real chance the applicant will be harmed for any of the reasons claimed, individually or cumulatively. The Tribunal does not accept that the applicant faces a real risk of significant harm on any other basis claimed.

The Tribunal has carefully considered each of the integers of the applicant’s claims of fear of serious harm discussed above with respect to his claims for refugee protection in the context of the complementary protection criterion regarding the real risk of significant harm at s 36(2)(aa). The Tribunal finds that the applicant’s return to India does not give rise to a necessary and foreseeable risk of significant harm for the purposes of s 36(2)(aa) of the Act.

225. The Tribunal, therefore, finds that there are no grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk of significant harm for the purposes of s 36(2)(aa) of the Act.
CONCLUSION
226. 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).

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

228. There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s 36(2).
DECISION
229. The Tribunal affirms the decision not to grant the applicant a protection visa.
Simone Burford
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.
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36     Protection visas – criteria provided for by this Act
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(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.
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