2312497 (Refugee)

2312497 (Refugee) [2023] AATA 4703 (31 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2312497
COUNTRY OF REFERENCE:                   India
MEMBER:Damian Creedon
DATE:31 October 2023
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 31 October 2023 at 2:31pm
CATCHWORDS
REFUGEE – protection visa – India – religion and political opinion – Sikh, member of student organisation and supporter of Khalistan independence movement – attendance at rallies, attacks and threats – social media activity in Australia – return visit – conviction, imprisonment and immigration detention – credibility – vague, unsubstantiated and unconvincing claims and evidence – limited knowledge of historical or contemporary issues – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), 65
Migration Regulation 1994 (Cth), Schedule 2
CASES
MIEA v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
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 14 August 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Background
The applicant, a [Age]-year-old citizen of India, initially arrived onshore [in] September 2015 holding a Student (Subclass 573) visa.
The applicant applied for a protection visa on 13 July 2023; he is presently in immigration detention.
Protection visa application
The applicant’s claims for protection are set out in his protection visa application forms; they may be summarised as follows:
a.The applicant was born into a Sikh family in Punjab, India.
b.During his secondary and senior secondary examination in India, the applicant was a member of the Khalistan movement (a movement supporting the creation of an independent Sikh state known as ‘Khalistan’) and Sant Bhindranwale (a deceased separatist leader and leading figure behind the Khalistan movement).
c.Due to his support for the Khalistan movement, the applicant faced harm from people every day.
d.The applicant was forced and convinced by his parents to move overseas to escape this harm, resulting in the applicant’s move to Australia in 2015 to study on a Higher Education Sector (subclass 573) visa.
e.The applicant supports the Khalistan movement on social media and has received threats.
f.Since coming to power, the Bharatiya Janata Party (BJP) government, which is affiliated with the “terrorist group” Rashtriya Swayamsevak Sangh (RSS) and other associated groups, are targeting religious minorities, specifically Sikh’s, Muslims and those who support Khalistan.
g.The applicant is unable to seek help from the authorities as he supports the separatist movement, and by contacting the authorities he endangers himself, his family and friends.
h.The applicant is unable to relocate as he is fearing persecution from the government and extremist groups, some of which are affiliated with the government.
i.The applicant fears being falsely accused of having links to a terrorist group, gaoled, and killed.
j.As a Sikh and person who continues to support the Khalistan movement the applicant will be targeted by people, the Indian government, RSS, Shiv Sena, and affiliated groups if he is returned to India.
The delegate refused to grant the visa on the basis that the applicant is not a refugee as defined by s5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to his receiving country, there was a real risk he would suffer significant harm.
The applicant applied for a review of the delegate’s decision.
Application for review:
The applicant appeared before the Tribunal on 19 October 2023 to give evidence and present arguments. The applicant was not represented in relation to the review.
Where relevant, the applicant’s oral evidence to the Tribunal is referred to below.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law:
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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Evidence:
The Tribunal has before it a range of material, including, relevantly, copies of the following documents:
a.The applicant’s protection visa application forms generated on 13 July 2023 (protection visa application);
b.The delegate’s protection visa decision record dated 14 August 2023 (delegate’s decision record); and
c.The review application form submitted by the applicant to the Tribunal on 18 August 2023, which included a copy of the delegate’s decision record.
The Tribunal has read and had regard to an article submitted by the applicant to the department in connection with his protection visa application, namely:
·Sehgal, M, (21 June 2023), “Khalistani terrorists go into hiding after murders, suspicious death in UK, Canada”, India Today;
The applicant also provided a personal statement, dated 2 July 2023, in which he outlines his education and employment history in Australia, criminal charge, rehabilitation efforts, and his behaviour in detention. The Tribunal has read and had regard to this statement.
The Tribunal has also read and had regard to the Department of Foreign Affairs and Trade’s Country Information Report India, published on 29 September 2023 (DFAT Report) and to other country information as set out below.
Country of reference / receiving country:
The applicant claims to be an Indian national. Based on the copy of his passport provided to the Tribunal by the applicant, and in the absence of any other evidence to the contrary, the Tribunal finds that India is his country of nationality and also his receiving country for the purposes of the Act.
Assessment of Claims and evidence, and findings:
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.
Oral evidence:
The applicant’s oral evidence to the Tribunal may be summarised as follows:
a.The applicant stated that he is [Age] years of age and was born in Hoshiarpur in the state of Punjab, India. His parents are resident in India. He has one sibling, a sister, who is six years his senior, and who is resident in Melbourne with her husband and family.
b.The applicant is not married, or in a relationship, and he has no children. The applicant is of the Sikh faith.
c.The applicant completed his primary and secondary schooling in India. After finishing school, the applicant came to Australia on a Student visa intending to study a Bachelor of [Subject 1] degree. When pressed on the outcome of his studies, the applicant stated that he had changed his study pathway to complete a ‘diploma of [Subject 2]’ as this pathway more closely matched his personal interests.
d.The applicant stated that he completed certificates 3 and 4 in his preferred study pathway, however his studies were interrupted when he started using drugs and “ended up in jail” for 28 days. He is now in immigration detention.
e.When pressed by the Tribunal the applicant confirmed that he had been convicted of “possession of drugs”. The Tribunal stated to the applicant words to the following effect:
I wish to assure you that none of the materials relating to your criminal offending will be weighed against you in arriving at a decision concerning your status as a refugee, or in considering whether you are owed complementary protection.
f.When asked by the Tribunal what he feared about returning to India, the applicant stated that when he was at school, he joined a Sikh student organisation, the “All India Sikh Students Federation” (AISSF). When pressed, he stated that he joined the AISSF “between 2010 [or 20]11”.
g.When asked why he joined, the applicant stated that he had a computer and started searching about Sikh history. He stated:
[In] June 1984 they had a genocide, and [the] Indian army attacked… the temple, so I wanted to know more.
h.The applicant stated that there were “some people” who were telling students at a presentation about the events of 1984. The applicant stated that he was curious to know what happened and so he joined the group.
i.When pressed the applicant stated that the “presentation” was held at his school and that there were teachers present, although he did not know if the AISSF had been invited by the school.
j.When pressed as to his reaction to the presentation, the applicant stated that he was “very surprised” to know how “our own army” attacked and killed innocent people in the temple.
k.When asked what action he took upon learning these things, the applicant stated that he joined the AISSF. When pressed as to what formalities this involved, the applicant stated that he did not pay a membership fee, and he did not receive a membership card or certificate, he stated:
It’s like a group in college, he used to tell the other students about the history, what happened, he used to organise programmes outside the college in the Sikh temples.
l.When pressed as to his fears on this account, the applicant stated that he became aware of a group called the “RSS” in Punjab. The applicant stated:
They used to come and protest against us.
m.The applicant stated that one of the members of the group used to study with him at school, and that this person started to target him, and he was followed home from school and that he was “attacked a couple of times”. When pressed, the applicant stated that he was on his bike and that he was hit “from the back” with by a car, beaten and abused. The applicant stated that other members of the AISSF experienced similar incidents. The applicant did not tell his family or anyone else of the incidents. The applicant stated that he was “17 or 18” at the time of these incidents and that his attackers were around the same age or older.
n.When asked how these experiences affected him, the applicant stated that he “just wanted to tell the truth” about Sikh history. He stated that the government labelled “those people” terrorists, and he wanted to “tell people they’re lying”.
o.The applicant stated that he feared for his life.
p.When asked whether he could simply leave the AISSF, the applicant stated that “it was already too late”, that he was a known member, and “used to post on [Social media]” and received threats for that. When pressed, the applicant stated that his [Social media] account was “blocked” and he is unable to access it.
q.When asked what decisions he made as a result of this situation, the applicant stated:
Actually, it was my family, when they found out I was being attacked.
r.The applicant stated that his family approached a friend who was a police officer, and they were advised that they should not lay a complaint as the applicant would be charged with being a “Khalistani” sympathiser and “put in jail”. The family were advised that it was” better to send [the applicant] overseas”.
s.The applicant stated that, after arriving onshore, he maintained contact with some of his friends from the AISSF but he has since lost contact.
t.The applicant stated that he attended the [Suburb] Sikh Temple in Melbourne for worship and that the Khalistan project was discussed there, but in an informal way:
Just like normal chat.
u.When asked what his view was of the Khalistan project now, the applicant stated
Same, still same; I support Khalistan.
v.The Tribunal put to the applicant that the events he described in India occurred some 10 years ago and asked whether he still had reason to fear these people. The applicant stated that he did. When pressed, the applicant stated that when he and his sister returned to India for a visit in 2019, he was attacked. When further pressed, the applicant stated:
Some people, they follow me, but I got lucky; I moved to… my uncle’s house, but my cousin looked the same [as me] with same tattoos and physique, and he ended up getting attacked; somebody attacked him with machetes… thinking it was me.
w.The applicant stated that, because of this incident, his dad had stopped talking to him. The applicant stated that he talks to his Mum “sometimes”. When pressed as to why his dad had stopped talking to him, the applicant stated:
He was like, because of me my cousin got attacked so my actions are causing problems in the family.
x.When pressed as to what actions he was referring, the applicant stated his connection to the AISSF.
y.When asked whether he ever attended any rallies as a member of the AISSF, the applicant stated that he attended “a couple”, and gave the example of the annual events at Sikh temples to commemorate the events of 1984 at which speeches were given.
z.When pressed, the applicant stated his belief that he would be identified as having been an attendee at the rallies.
aa.When asked whether he could relocate to another area in India such as Mumbai, the applicant stated that he could not as he would not feel safe outside Punjab where rival groups are “more active”.
bb.The applicant stated that the attacker he referred to previously, one [Mr A], is connected with an RSS “politician”, one [Mr B]. The applicant stated his belief that he would still be targeted by that person ([Mr A]) as they had his photo, address “and everything”.
cc.The applicant stated, when pressed, that he could not lay a complaint with the police as he would be jailed as a Khalistan sympathiser.
dd.When pressed by the Tribunal as to the goals of the “Khalistan” project, the applicant stated (uncorrected):
Khalistan is like, we want separate Sikh state, we don’t want to stay with India because India already done so much discrimination with us.
ee.The applicant stated that since the Partition in 1947 Pakistan has diverted water away from Punjab, and that “we” want Amritsar to be declared a holy city, alcohol, and tobacco free. The applicant stated that, contrary to existing practices, in Khalistan no women would be kept in police stations overnight.
ff.The applicant stated his belief that the authorities in India would target him as a supporter of Khalistan. The applicant stated that he received threats via [Social media].
gg.When asked whether he was able to freely enter and exit India when he visited in 2019, the applicant stated that he was able to.
hh.The applicant stated that if he were to return to India, outside Punjab, he “would be dead” because if anyone in India finds out that he supports Khalistan he would “have problems”. The applicant stated that his photos had been shared by RSS members.
ii.The applicant stated that if he were to return to India he would still feel motivated to promote the Khalistan project.
Country information:
Religious freedom and Hindu nationalism

Religious freedom in India has deteriorated under the leadership of Prime Minister Modi, elected in 2014, whose fundamental ethos is Hindu. Since then, there has been a rise in Hindu extremist exclusionary narratives, with Hindu nationalist groups targeting religious minorities, including Sikhs.[1]
[1] P Chacko in “Why Modi’s India has Become a Dangerous Place for Muslims” The Conversation (3 March 2020).
According to the United States Commission on International Religious Freedom (USCIRF):[2]
Religious freedom conditions in India are taking a drastic turn downward, with national and various state governments tolerating widespread harassment and violence against religious minorities.
[2] See: <>
In its Annual Report 2023, released in April 2023, USCIRF notes, at p24:
In 2022, religious freedom conditions in India continued to worsen. Throughout the year, the Indian government at the national, state, and local levels promoted and enforced religiously discriminatory policies, including laws targeting religious conversion, interfaith relationships, the wearing of hijabs, and cow slaughter, which negatively impact Muslims, Christians, Sikhs, Dalits, and Adivasis (indigenous peoples and scheduled tribes). The national government also continued to suppress critical voices—particularly religious minorities and those advocating on their behalf—including through surveillance, harassment, demolition of property, and detention under the Unlawful Activities Prevention Act (UAPA) and by targeting nongovernmental organizations (NGOs) under the Foreign Contribution Regulation Act (FCRA).[3]
[Tribunal’s emphasis.]
[3] See: <>
In an update published on 3 October 2023 the USCIRF further reports that:
[The USCIRF] held a hearing on “Advancing Religious Freedom within the U.S. - India Bilateral Relationship,” which highlighted the Indian government’s legal framework and enforcement of discriminatory policies against religious minorities. Witnesses gave testimony exploring policy options for the United States to work with India to combat religious freedom violations and other related human rights in the country.
"Religious freedom conditions in India have notably declined in recent years,” said USCIRF Chair Abraham Cooper. “Muslims, Sikhs, Christians, Dalits, and Adivasis are experiencing increased levels of attacks and acts of intimidation. Authorities have continued to suppress minority voices and those advocating on their behalf. These trends, and their implication for U.S. foreign policy, should not be ignored.”
USCIRF’s Frank. R Wolf Freedom of Religion or Belief Victims List, a public database of individuals known to have been detained on the basis of the peaceful exercise of their freedom of religion or belief, includes 37 individuals across multiple faiths imprisoned in India.
“During the hearing, we brought attention to Meeran Haider and Rupesh Singh, both of whom are detained for protesting religious freedom conditions. Haider was targeted for leading peaceful protests against the Citizenship Amendment Act (CAA) and was charged with offenses under the UAPA. Singh is a freelance journalist known for his reporting on state violence and discrimination against Adivasis. He has been detained since July 2022, also under the UAPA,” said USCIRF Vice Chair Frederick A. Davie. “USCIRF calls on the Indian government to evaluate these cases and to release all prisoners of conscience and those detained for peacefully expressing their religion or belief.”
Since 2020, USCIRF has recommended that the U.S. Department of State designate India as a Country of Particular Concern (CPC) for its systematic, ongoing, and egregious violations of religious freedom. This past June, USCIRF urged President Joseph R. Biden to address concerning issues of religious freedom and other related human rights in India during Prime Minister Narendra Modi’s state visit. USCIRF also highlighted the violence against the tribal Christians in Manipur in a Spotlight Podcast episode and published an issue update on India’s state-level anti-conversion laws, providing further context on India’s use of these laws to target religious minorities.[4]
[Tribunal’s emphasis.]
[4] See: USCIRF Reiterates Concerns on Religious Freedom in India, Calls for Release of Religious Prisoners of Conscience, <>
Human Rights Watch report, in India: Government Policies, Actions Target Minorities – Year After Delhi Violence, Bias Against Muslims Taints Investigation (19 February 2021) (“HRW report”), that
[P]rejudices embedded in the government of the ruling Hindu nationalist Bharatiya Janata Party (BJP) have infiltrated independent institutions, such as the police and the courts, empowering nationalist groups to threaten, harass, and attack religious minorities with impunity.
[Tribunal’s emphasis.]
Under the heading “Hindu nationalism” the DFAT Report notes that:
3.19      Since the election of the BJP government in 2014 there has been sustained media attention on the issue of Hindu nationalism, sometimes known as Hindutva, roughly translated as ‘Hindu-ness’. A key aim of Hindu nationalism is to ‘restore’ the pre-eminence of Hindu culture-civilisation in India. There have been high-profile attacks by Hindu nationalists against minority religious communities and some analysts have claimed that the national government has created a permissive environment for Hindu nationalist groups to intimidate members of minority religions through violence, hate speech and otherwise.
3.20      The most prominent Hindu nationalist group is an organisation called the Rashtriya Swayamsevak Sangh (RSS) and its many affiliated organisations. RSS was founded in 1925, however came to international prominence after the election of the BJP government at the national level (the BJP emerged from the RSS as its political wing). The RSS itself is only open to males; a women’s organisation exists but does not have the same prominence or influence on society; both men and women can be part of the RSS’s affiliate organisations. Traditionally, the RSS has been dominated by upper-caste Hindus, but it has made a significant effort to diversify its membership in recent decades. The RSS’s main organisational unit is its daily ‘shakhas’ which includes morning military-like drills and martial arts, religious and cultural instruction, and social events. It aims to instil discipline in its members. The RSS has overseas affiliates including branches in Australia (called the Hindu Swayamsevak Sangh).
3.21      The Vishwa Hindu Parishad (VHP) is an affiliate of the RSS founded in 1964 with the goal of consolidating Hindu society and protecting Hindu dharma (roughly translated as religion or philosophy). The organisation is involved in renovation and construction of Hindu temples, campaigns against other religions proselytising, and political activism. For example, the group was allegedly involved in a riot in which a mosque was vandalised and houses and shops were ransacked in Tripura in October 2021. Similar riots between Hindus and Muslims occurred in 2022 (see Muslims). The VHP also has branches in Australia.
3.22      Bajrang Dal (BD), the youth wing of the VHP, has been active in campaigning against cow slaughter, Muslims marrying Hindus, and against proselytisation by other religions – including resorting to violence. A BD activist was stabbed to death in Karnataka in February 2022. Police linked the stabbing to the activist’s anti-Muslim hate speech on social media. Supporters rioted during a funeral procession for the dead man causing several injuries and damage to cars and businesses.
3.23      The most recent example of large-scale communal violence was the Delhi riots of early 2020. Protesters against the Citizenship (Amendment) Act 2019 clashed with counter-protesters in several parts of Delhi in January and February 2020, leading to more than 50 deaths; a disproportionate number (two thirds) were Muslims. According to Human Rights Watch and some Indian media sources, police selectively delayed investigations and charges against rioters based on their Hindu religion, with many court cases still pending as of early 2022. Courts, police and criminal processes in India are slow and the extent of religious discrimination versus slow bureaucracy is not clear, but in some cases Indian judges have criticised the police investigations as unprofessional or incompetent.
3.24      Other examples of communal violence include violent protests in December 2021 after several radical Hindu leaders called for Hindus to take up arms against Muslims at a religious conclave in Uttarakhand. The slogans they used called for violence to protect Hindus from Muslims. The speakers and attendees were mostly from Hindu fringe groups.
3.25      Right-wing protesters gathered in Tripura to protest anti-Hindu violence in neighbouring Bangladesh in November 2021. A mosque was vandalised by the protesters. According to The Guardian, the violence was incited by people using social media and police had asked platforms such as Facebook, Twitter and YouTube to remove posts, some of which were removed the next day.
3.26      So-called ‘cow vigilante’ attacks receive a significant amount of media coverage. Cows are sacred to Hindus. Cow vigilantism generally involves groups of men who find and attack people, usually religious minorities, who allegedly interfere with cows, for example across State lines. Victims are often beaten, sometimes to death. Overall, these incidents are not common.
3.27      Communal disputes occur around other issues cultural differences, for example non-vegetarian food. The New York Times reported in December 2021 that city officials seized or overturned stalls selling eggs and meat products in Ahmedabad because of complaints by Hindus that non-vegetarian food sales hurt their religious sentiments. DFAT is not aware of a pattern of incidents.
3.28      When violence by Hindu nationalists occurs, it attracts significant media attention. Violent incidents are often perpetrated by extremists and fringe groups. While those groups are loud and can amplify their voices widely through social media, incidents of violence such as those described above are not day-to-day occurrences. While uncommon, when they do occur, they can lead to fatalities. Hindu nationalists enjoy a significant amount of political and social capital and DFAT assesses that they experience a low risk of social or official discrimination.
Situation of Sikhs and other religious minorities
As a religious minority, Sikh constitute a small percentage of the country’s population. India’s most recent 2011 population census records Sikhs at 1.7 per cent, with the majority residing in the Punjab.[5]
[5] Immigration and Refugee Board of Canada, India: Situation of Sikhs Outside the State of Punjab, Including Treatment by Authorities and Society; Ability of Sikhs to Relocate Within India; Treatment of Khalistan Supporters or Perceived Supporters Outside of Punjab (2017-October 2019) (16 December 2019) (“2019 IRB report”) at [1]; USCIRF report at p23.
A previous version of the DFAT Report, published 17 October 2018, contains the following information, including an account of ‘Operation Blue Star’ in June 1984:
3.16 Sikhism is a monotheistic religion founded in the Punjab region (now part of both India and Pakistan) in the 15th century. Sikhs consider themselves disciples of the Ten Gurus, beginning with Guru Nanak (1469-1539) and ending with Gobind Singh (1666-1708). According to the 2011 census, the Sikh population of India was approximately 19 million, 1.7 per cent of the total population at that time. Most Sikhs (75 per cent) live in Punjab, where they comprise around 55 per cent of the population.
3.17 One of the points of difference between Sikh groups is the extent to which they support the creation of an independent Sikh state known as ‘Khalistan’. The 1966 creation of the Punjabi-speaking Sikh majority state of Punjab went some way to addressing these demands. During an internal struggle within the Sikh community in 1982, separatist leader Jarnail Singh Bhindranwale and his followers moved into the Golden Temple complex in Amritsar. In June 1984 the Indian government ordered the army to eject Bhindranwale and his followers from the complex in an offensive known as ‘Operation Blue Star’. The army bombarded the Golden Temple complex, inflicting serious damage. Bhindranwale and many of his supporters were killed during the operation.
3.18 In retaliation for Operation Blue Star, two of then-Prime Minister Indira Gandhi’s Sikh bodyguards assassinated her at her home in New Delhi in October 1984. In the days that followed, mobs seeking revenge for the assassination attacked Sikh homes and businesses, including in New Delhi. Approximately 3,000 people, mostly Sikhs, were killed in the violence. Security forces carried out further operations to suppress Sikh separatism during the late 1980s, during which allegations emerged of torture, extrajudicial killings and deaths in custody carried out by security forces.
3.19 Sources agree that, since the late 1980s and early 1990s, Sikhs have lived peacefully in India and the majority of Sikhs do not experience societal discrimination or violence. Sikhs who advocate for an independent ‘Khalistan’ may be subject to attention by authorities. DFAT assesses that Sikhs in India generally face a low level of official and societal violence and discrimination.
[Tribunal’s emphasis.]
The current DFAT Report notes that:
3.60      Sikhism is the dominant religion in Punjab. There are significant populations of Sikhs in nearby states such as Haryana, Delhi, Rajasthan, Uttar Pradesh and Uttarakhand and there are Sikhs all over the country. Sikhism was founded in Punjab in the late 15th century. Unlike Hinduism, it is monotheistic. Its religious values emphasise equality and service to the poor.
3.61      Sikhs commonly work in many industries, notably agriculture, transport and business. There are very senior Sikhs in politics and Sikhs are well represented in the armed forces. 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.
3.62      Some Sikhs claim that their beliefs are not properly recognised by the Indian Government as a religion; the constitution groups Sikhs, Buddhists and Jains with Hinduism, for example. This means that laws relating to Hindu marriage, for example, also apply to Sikhs. A small number of Sikhs, predominantly overseas are involved in the ‘Khalistan’ separatist movement, covered in the section on Punjab.
3.63      DFAT assesses 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.
[Tribunal’s emphasis.]
Sikhs and ‘Khalistan’
According to the USCIRF report, Hindu nationalists view Sikhs as having rejected Hinduism and as being enemies of India owing to Sikh support for the Khalistan political movement, which aims to create a new state in India for Sikhs and full legal recognition of Sikhism as an independent faith.[6]
[6] 2019 IRB report at [2.1].
Human Rights Watch also reports how BJP leaders have accused Sikhs of having a ‘Khalistani’ agenda, a reference to a Sikh separatist insurgency in Punjab in the 1980s and 90s.[7] Notably, the Sikh militant period was spent in the Punjab by the early 1990s after the killing and surrender of militant leaders and a decline in attendance at political rallies led by militant groups.
[7] HRW report.
The IRB report India: Treatment of Sikhs in Punjab (2013–April 2015) (12 May 2015) at [2] notes that Sikhs suspected of being “militant sympathizers” are “subject to monitoring and in some cases, detention and torture”.
A 2023 IRB report[8] notes that:
According to sources, the police "keep track of"… or "monitor" Khalistan supporters…. According to the [source], security services are more likely to focus on Sikh separatists because they represent "a perceived political threat to the unity of India"….
[8] Immigration and Refugee Board of Canada, India: Treatment of Sikhs by society and authorities, particularly the police; state protection; situation and treatment of suspected or perceived Sikh militants and Khalistan supporters in the state of Punjab by society and the authorities; prevalence of arrests, including methods used by the police to track them; situation and treatment of Sikhs outside the state of Punjab by society and authorities; ability for Sikhs to relocate within India outside the state of Punja b (2020–May 2023), 25 May 2023.
The 2019 IRB Report similarly expresses that Sikhs who advocate for an independent Khalistan may be targeted by the authorities. They may be harassed by police and implicated in criminal cases.[9]
[9] 2019 IRB report at [3].
The report highlights how the World Sikh Organization (WSO), and the Associate Professor interviewed by the IRB in May 2019, indicated that “Sikhs who support an independent state of Khalistan can in many cases face severe persecution not just in Punjab but in other states”. The associate professor qualified, however, that unless Sikhs vocally propagate a separate Sikh state, they would “generally” be safe outside the Punjab.[10]
[10] 2019 IRB report at [3].
The IRB report at [3] provides examples of other actions taken by the authorities against Sikh persons associated with the Khalistan cause, stating that, in February 2019, three Sikh youths were sentenced to life imprisonment in Punjab for possession of pro-Khalistan literature. This case was, however, called “unprecedented” and “rare”.
In reporting further on restraints on Sikh freedoms, the IRB report at [2.1] cites from the USCIRF 2019 Annual Report, which records how Hindu nationalist groups have targeted religious minorities, including Sikhs, who face:
[C]hallenges ranging from acts of violence or intimidation, to the loss of political power, increasing feelings of disenfranchisement, and limits on access to education, housing, and employment.
According to an article by an Indian online newspaper, The Citizen, a ‘lynch mob phenomenon’ where mobs of Hindu “have lynched Muslim, Christian, Sikh and Dalit Indians over rumours and suspicion” has been occurring in India, with 77 lynchings reported between March 2017 and July 2018. The article reports how police have observed such actions without intervening.[11]
[11] H Tripathy “How New India Developed Its Own Lynch Culture in Just Five Years” The Citizen (30 March 2019).
Recent developments in Canada suggest that the ‘Khalistan’ movement has raised international tensions. Time magazine, in an article entitled “India-Canada Tensions Highlight the Complexities of Sikh Activism” [12] reports:
[12] See: < shocking accusation this week by Canadian Prime Minister Justin Trudeau that India may have been behind the assassination of a Sikh separatist leader in British Columbia has raised several complex questions about the nature of Sikh activism in the North American diaspora.
Canada is home to the largest Sikh population outside India. There are about 800,000 Sikhs in Canada — roughly 2% of the population. The United States is home to about 500,000 Sikhs. While some Sikhs argue there is widespread support in the diaspora for an independent Sikh state in the subcontinent called Khalistan, others say there is no such consensus.
The debate over support for Khalistan and what activism looks like in the Sikh diaspora has intensified after Trudeau’s accusation that India may have had a hand in the assassination of 45-year-old Hardeep Singh Nijjar, a Canadian citizen shot dead outside the Guru Nanak Sikh Gurdwara in Surrey on June 18.
That information is based on Canadian intelligence as well intelligence from a major ally, according to a Canadian official who spoke on condition of anonymity as they were not authorized to speak publicly. The information is based in part on surveillance of Indian diplomats in Canada.
Nijjar, a prominent Sikh leader in British Columbia, was designated a terrorist by India in 2020 for his alleged links to the Khalistan Tiger Force, a group campaigning for independent Khalistan in the Punjab region of India. The active insurgency ended decades ago, but Prime Minster Narendra Modi's government recently warned that Sikh separatists were trying to stage a comeback and pressed countries like Canada to do more to stop them.
The question of Khalistan or Sikh sovereignty “is not a fringe concept or idea in the community,” said Jaskaran Sandhu, a board member with the World Sikh Organization of Canada, the largest Sikh advocacy organization in that country.
“When you look at Sikh history, it has always been about sovereignty and self-determination,” he said. “Sikh voices calling for an independent state where they can practice their faith freely are getting louder. There is strong support for Khalistan in the diaspora because we have the right to free speech and the right to organize here, while you don’t have that in India.”
India has outlawed the Khalistan movement. Groups associated with it are listed as terrorist organizations under India’s Unlawful Activities (Prevention) Act and are considered a serious security threat by the government. In the U.S. and Canada, Khalistani activism is not illegal and is protected under free speech laws.
Gurpatwant Singh Pannun, general counsel with Sikhs for Justice, has also been listed as a terrorist by the Indian government. The organization was banned by India in 2019.
Pannun has been a leading organizer of the Khalistan Referendum, inviting Sikhs worldwide to vote on whether Punjab should become an independent nation based on religion. Organizers of the nonbinding referendum hope to present the results to the U.N. General Assembly in about two years.
“Sikh sovereignty means having your independent, autonomous state where you have total control of the state’s resources,” Pannun said, adding that Sikhs in India are still forced to live under Hindu laws governing marriage, inheritance and adoption. Pannun faces sedition and a slew of other charges in India and has faced criticism for saying “Indo-Hindus who work against the interests of Canada” should return to India.
Pannun says he worked closely with Nijjar for many years and calls him “one of the dedicated campaigners for Khalistan.”
“He knew his life was in danger,” he said. “We spoke 18 hours before his assassination. But he never took a step back."
Not all agree that Khalistani activism is on the rise in the diaspora. Amandeep Sandhu, India-based journalist and author of “Panjab: Journeys Through Fault Lines,” believes it remains a fringe movement. Even if 200,000 people may have shown up to vote at referendums held so far, that number is small compared to the 30 million Sikhs who live in India and around the world, he said.
While Sikhs who migrated to North America, Australia and the United Kingdom may carry inter-generational trauma and memories of a “brutal Indian state,” they have not become engaged in the fight for Khalistan because they are busy building lives for themselves, Sandhu said.
“Life is hard for migrants," he said. “How much money and resources do you have for Khalistan, a state that remains undefined?”
Neither the Sikh community in India nor the diaspora is monolithic, he said. In India, Sikhs are also among the most patriotic. They are about 2% of India’s population, but form 8% of the nation’s army, and Sikh soldiers are among the nation's most decorated, Sandhu said.
Rajvinder Singh, a New Delhi store owner, said he believes “Khalistan’s ideology has no place in the minds of the Sikhs.”
“I don’t support Khalistan,” he said. “If some foreigners believe in it, what can we do about it? This is a matter for diplomatic discussions. Both countries should work towards becoming better trade partners and not fight over these issues.”
In the diaspora, it is hard to tell how many actually support state separatism, said Anneeth Kaur Hundle, associate professor of anthropology and a specialist in Sikh studies at the University of California, Irvine.
Hundle said that in addition to the Khalistan issue, a lot of recent activism in the diaspora has focused on gaining more recognition for Sikh suffering linked to events of 1984, when Prime Minister Indira Gandhi sent the Indian army to the Golden Temple in Amritsar, the holiest of Sikh shrines, to flush out several key figures in the growing militant Khalistani movement. Months later, following Gandhi’s assassination by her Sikh bodyguards, thousands of Sikhs were killed across north India as the violence spread beyond Amritsar.
“While community members are not in agreement when it comes to what autonomy is or looks like, all Sikhs do want to engage in whatever activism they want without being attacked or killed for it,” she said. “Trudeau, with this statement, has stood up for all activists in the diaspora."
Since Monday, ties between India and Canada have plunged to their lowest point in years as India stopped issuing visas to Canadian citizens and told Canada to reduce its diplomatic staff.
Some say these events are having an impact on the rest of the Indian diaspora and straining relationship with Hindus, who slightly outnumber Sikhs in Canada.
Samir Kalra, managing director of the Hindu American Foundation, said the “resurgence of Khalistani extremism in the diaspora has significantly impacted Indian Americans of all backgrounds and has led to a great deal of fear and insecurity within the community.” He cited “a disturbing trend” of incidents including vandalism at Hindu temples and Mahatma Gandhi statues in Canada and the United States.
“Indian men, women and children have endured intimidation and harassment at India Day festivals in both countries, as well as at a Diwali festival in Canada last year,” said Kalra. He said Indian Americans also have been harassed outside the Indian Consulate in San Francisco, where "Khalistani extremists have frequently shown up and attempted to break into and set on fire the consulate building.”
Cynthia Mahmood, professor of anthropology at Central College in Iowa and an expert on the Khalistani movement, has talked to militants and written about the concept of violence and nonviolence in Sikhism. She holds that it is different from Western ideas.
“In Sikhism, the question is about the fight for justice,” she said. “Sometimes you have to use violence, and sometimes, nonviolence, for self-defense and to pursue justice. The Western polarity of war and peace doesn’t quite apply in the Sikh context.”

In a 2018 report the United Kingdom Home Office (UKHO) notes that:[13]
Religious minorities and members of Scheduled Castes may experience some local state discrimination, including police hostility and harassment. However, it is unlikely that this would, in general, be sufficiently serious by nature and repetition that would cause them to face a real risk of persecution or serious harm.
[13] UKHO, Country Policy and Information Note India: Religious Minorities, Version 2.0, May 2018 at 2.3.5.
The UKHO further notes that:[14]
Religious minorities live throughout India and information on the scale of the problem is vague, but Hindu nationalists are a small sub-set of the population and many issues in themselves would not give rise to a well founded fear of persecution. Whilst outbreaks of communal violence do occur, in general, religious minorities, those in interfaith marriages, and members of Scheduled Castes, although sometimes subject to discrimination and localised harassment, are in general not subject to treatment which is sufficiently serious by nature and repetition to be persecutory or cause serious harm.
[14] Ibid, 2.3.13.
Analysis:
The Tribunal has had regard to the President's Directions and in particular the direction that members are to take all reasonable steps to complete papers allocated to them as quickly as possible, and that generally in reviewing a decision to refuse the grant of a protection visa members should address only those elements of the criteria for a protection visa that are necessary to resolve the application on review.
In assessing the applicant’s circumstances the Tribunal is mindful of the Guidelines on the Assessment of Credibility (July 2015) issued by the Administrative Appeals Tribunal which note:
In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true.
However, this should not lead to “an uncritical acceptance of any and all allegations made by” the applicant.
For the avoidance of doubt, and as explained to the applicant during the hearing, the Tribunal places no weight upon the applicant’s criminal convictions in the assessment of his credibility, or in the assessment of his claims to refugee status, or to be owed complementary protection. The Tribunal considers these criminal convictions to be irrelevant considerations to these assessments.
In respect of his claim for protection, the applicant asserts that:
a.he developed an interest in Sikh history and joined the AISSF while a student at school;
b.he supports the movement seeking Sikh separatism from India; and
c.he supports the establishment of ‘Khalistan’ as a Sikh homeland.
Country information reviewed by the Tribunal confirms that Sikhs who advocate for an independent Khalistan may be targeted by the authorities. They may be harassed by police and implicated in criminal cases. Country information also confirms that those viewed by the authorities in India as Sikh dissidents, anti-government activists, or “militant sympathizers”, and those actively supporting the establishment of ‘Khalistan’, face a real chance of mistreatment as the state seeks to repress such dissent.
Country information also confirms the existence of high-profile attacks by Hindu nationalists against minority religious communities, with some analysts claiming that the national government in India has created a permissive environment for Hindu nationalist groups to intimidate members of minority religions through violence, hate speech and otherwise.
For the following reasons, however, while the Tribunal accepts the applicant’s Sikh identity, and his general interest in Sikh history and culture, the Tribunal is not persuaded that the applicant either has held, or presently holds, any dissident or anti-government views or that he would be perceived adversely by the government in India as a “militant sympathiser” or supporter of, or activist for, the establishment of ‘Khalistan’. Nor does the Tribunal accept that he would be targeted by the authorities in India, by the RSS or by any group or person for being, or being perceived to be, a Sikh dissident, an anti-government activist, a “militant sympathiser”, or as actively supporting the establishment of ‘Khalistan’.
Despite being repeatedly pressed by the Tribunal, the applicant was unable to provide any convincing oral evidence to substantiate his claims to holding anti-government or Sikh dissident opinions. When pressed on the nature of his views, the applicant’s answers were trite and repetitive, exhibiting no persuasive depth of knowledge of Sikh history, or of the politics surrounding Sikh separatism either historically, or in a contemporary setting. For example, despite his claims to have been motivated to “know more” about Sikh history, his knowledge as expressed in oral evidence was vague and superficial, and limited to trite statements concerning only the “events of 1984”. Overall, the applicant failed to persuade the Tribunal that he has held, or presently holds, a genuine interest in Sikh history of the nature he claims.
Nor, when pressed, was the applicant able to provide persuasive detail concerning his alleged experiences in India, or his claims to have been attacked by [Mr A] or any person associated with the RSS. When pressed, the applicant’s evidence on these issues was vague and speculative. Nor was the applicant able to sufficiently corroborate his vague claims to having “posted” on [Social media] or having been threatened for his views via that medium.
Similarly, the Tribunal is not persuaded that the applicant was a member of the AISSF, or associated with it, in such a way as to raise his profile to that of an actual or perceived Sikh dissident, or a “militant sympthiser”, or a supporter of the establishment of ‘Khalistan’ in the eyes of the authorities in India, the RSS, or any person there. When pressed for detail of his experiences the applicant’s evidence as to his involvement in the AISSF was passively expressed and did not include a depth of knowledge of the organisation or details as to its activities sufficient to persuade the Tribunal of his membership of the AISSF, or participation in its activities, beyond a general awareness of the existence of the group.
Having regard to the significant lack of credibility in the applicant’s evidence, the Tribunal finds that there is no real chance that the applicant will be harmed for the reason of his religion, political opinion (whether imputed or not), race, nationality, or membership of any particular social group apparent on the face of the evidence. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution. 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).
Having regard to the totality of the material before it, for the reasons set out above concerning the credibility of his claims, the Tribunal finds that the applicant has not held, and does not presently hold, any Sikh dissident or anti-government views or that he would be perceived adversely by the government in India as a “militant sympathiser”, or supporter of, or activist for, the establishment of ‘Khalistan’. The Tribunal finds that the applicant is not and will not be perceived to be a supporter of dissidents or of any groups opposed to the government in India, or a person who holds any views that may be considered to be adverse to the authorities or anyone else in India.
The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visas.
Damian Creedon
Member

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

[2023] AATA 4703

31 October 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction