2400014 (Refugee)

2400014 (Refugee) [2024] AATA 4061 (19 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2400014
COUNTRY OF REFERENCE:                   India
MEMBER:Donald Gordon
DATE:19 July 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 19 July 2024 at 4:43pm
CATCHWORDS
REFUGEE – protection visa – India – membership of particular social group – bisexual man – returned to home country after student visa ceased, then to get married under pressure from family – no current contact with wife – ground not raised in first withdrawn application – youthful relationship in home country – limited information about same-sex relationships in Australia before current relationship – cancellation of working visa set aside on review – conviction, imprisonment and immigration detention – case reported through online media – credibility of unsworn statement by claimed youthful partner and recent written threat delivered to mother – political opinion – Khalistan separatist supporter under coercion to join militant group – detained and assaulted – mental health – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 189(1)
Migration Regulations 1994 (Cth), Schedule 2
CASES
AEY17 v MICMA [2023] FedCFamC2G 562
AVQ15 v MIBP [2018] FCAFC 133
EQU19 v MICMSMA [2022] FedCFamC2G 609
EQU19 v MICMA [2023] FCA 1182
Guo v MIEA; Pan v MIEA (1996) 64 FLR 151
Lange v Australian Broadcasting Corporation [1997] HCA 25
MIEA v Guo (1997) 191 CLR 559
MIEA v Wu Shan Liang [1996] HCA 6
MIMA v Rajalingam (1999) 93 FCR 220
MIMIA v Lay Lat [2006] FCAFC 61
Minister of Immigration v Li [2013] HCA 18
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MIEA (1994) 124 ALR 265
Selvadurai v MIEA (1994) 34 ALD 347
Sundararaj v MIMA [1999] FCA 76
Yao-Jing Li v MIMA (1997) 74 FCR 275
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 20 December 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of India, applied for the visa on 29 November 2023.
The delegate refused to grant the visa on the basis that:
a.With respect to the refugee criterion set out in s 36(2)(a) of the Act, the delegate was not satisfied that the applicant has a well-founded fear of persecution, in that there is not a real chance that, if the applicant returned to their country of nationality, the applicant would be persecuted on account of their race, religion, nationality, membership of a particular social group or political opinion. Specifically, the delegate did not find the applicant’s claim on account of his sexual orientation to be credible, the delegate did not find the applicant’s claim on account of media exposure in India of his sexual offence conviction credible, there is no real chance of the applicant suffering serious harm on his claim of association to the Khalistan movement in India, and that the applicant’s mental health claims are not a ground for seeking refugee protection.
b.With respect to the complementary protection criterion set out in s 36(2)(aa) of the Act, the applicant is not a person in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to their country of nationality, there is a real risk that the applicant will suffer significant harm. Specifically, the delegate did not find that the applicant’s mental health claim constituted a real risk of significant harm and treatment is available in India.
The applicant appeared before the Tribunal on 24 May 2024 to give evidence and present arguments.
The Tribunal also received oral evidence from the following persons:
a.[Mr A], the applicant’s partner.
b.[Mrs B], the applicant’s mother.
c.[Mr C], an associate of the applicant.
d.[Mr D], an associate of the applicant.
The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi, Tamil (Sri Lankan) and English languages per the request of each person giving oral evidence.
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). 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–5LA, 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.
Relevantly, the Tribunal has taken into account the DFAT Country Information Report for India dated 29 September 2023.
CONSIDERATION OF CLAIMS AND EVIDENCE
Issue
The issue before the Tribunal is whether the applicant is a person in respect of whom Australia has protection obligations pursuant to:
a.The refugee criterion in s 36(2)(a) of the Act; or
b.The complementary protection criterion in s 36(2)(aa) of the Act; or
c.By virtue of ss 36(2)(b)–(c), being a member of the same family unit as a non-citizen who is mentioned in s 36(2)(a) or s 36(2)(aa) and holds a protection visa of the same class as that applied for by the applicant.
For the following reasons, the Tribunal has concluded that the decision under review ought to be affirmed.
COUNTRY OF NATIONALITY
The Tribunal finds the applicant’s identity and nationality are confirmed by his passport and recorded personal particulars.
The Tribunal finds that the applicant is a citizen of India, which is also his receiving country for the purpose of his protection claims and assessments.
In the absence of any contrary evidence, the Tribunal finds the applicant does not have a right to reside in a country other than India, and therefore s 36(3) of the Act is not applicable.
BACKGROUND
The applicant identifies as a Sikh from India.
He is the only child of his parents who are living in India.
The applicant first arrived in Australia on a student visa from India [in] January 2008.
The applicant’s immigration history shows that he applied for and was granted various visas consisting of student visas and his last lawful substantive visa was a Subclass 457 (temporary work) visa.
On 6 March 2019 a delegate of the Minister purported to cancel the applicant’s 457 temporary work visa on the basis that he had not been employed with his employer since September 2018, and he had not found a new sponsoring employer within the required 90-day statutory grace period. This cancellation event resulted in litigation which was ultimately successful in favour of the applicant in the Federal Court of Australia in [Case name][1] resulting in a remittal back to the Tribunal and a finding that his Subclass 457 temporary work visa cancellation be set aside in Case Number 2310394.
[1] [Case citation].
[In] May 2020 the applicant after an appeal was sentenced to 6 months imprisonment for [offence 1] at the [County Court]. Another charge of [offence 2] was struck out earlier. Both matters originated in the [Magistrates Court].
Pursuant to the [offence 1] conviction, the applicant has [detail redacted].
On 2 November 2020, the applicant’s Bridging Visa E (criminal detention) ceased and he was immigration detained pursuant to s 189(1) of the Act. The practical effect was that after serving his prison sentence, he was immigration detained.
The applicant is presently held in Immigration Detention and is liable to be removed to India.
The underlying basis for the applicant’s immigration detention arises from his conviction for [offence 1] for which he served a 6-month prison sentence. He does not hold a substantive visa to remain in Australia.
On 23 October 2023, the applicant applied for a protection visa which he withdrew on 13 November 2023.
On 23 November 2023, the applicant whilst attending on an unrelated review was found to have taken a mobile phone of a Tribunal member which he found on the Tribunal premises. The applicant initially denied having the mobile phone but admitted to it after the phone was subsequently found hidden in his room at the detention facility.
On 29 November 2023, the applicant applied for a protection visa, which was refused on 20 December 2023. The present review before the Tribunal pertains to that refusal decision.
At the time of the Tribunal hearing, the applicant was [Age] years old.
SEPARATING BACKGROUND FROM STATUTORY TEST
The Tribunal has set out the above background to provide a brief but relevant history of the matter to ensure context and transparency in the decision-making process.
However, the Tribunal reminds itself that the background matters must not unlawfully influence the reasoning process of the Tribunal.
By this the Tribunal must ensure the applicant is entitled to a meaningful hearing that is procedurally fair, not tainted by bias or irrelevant considerations and on the merits.
The Tribunal’s duty is to determine on a merits review whether the applicant satisfies the statutory test for protection set down in the Act according to law.
PROCEDURAL FAIRNESS ADJOURNMENTS
The matter was set down for a hearing on three prior occasions on 18 March 2024, 5 April 2024 and 10 May 2024. These hearings did not proceed.
Prior to each hearing the applicant requested an adjournment to better prepare his case including the awaiting and supplying of further documents that would assist the applicant’s review.
The Tribunal was minded to ensure the applicant was afforded procedural fairness and each request for an adjournment was deemed reasonable in light of the underlying basis, the matters the documents would go to and the nature of the claims raised by the applicant.
The Tribunal was also mindful of the decision and adjournment criteria discussed by the High Court in Minister of Immigration v Li.[2]
[2] [2013] HCA 18.
On each of the three prior occasions the Tribunal granted the adjournment to the applicant.
AUDIO-VISUAL HEARING
The Tribunal set the matter down for a hearing through audio-visual modality whereby the applicant would appear for the hearing from the detention centre facility and would not be required to personally attend at the Tribunal premises.
The reason for an audio-visual hearing was due to the applicant on his previous appearance on Tribunal premises taking a Tribunal Member’s mobile phone, details of which are briefly set out in the background above.
The applicant did not raise any objection to an audio-visual hearing from the detention centre facility.
The applicant however did request on 2 April 2024 that the audio-visual hearing invitation link be sent to his personal email address for privacy reasons, presumably so he could attend the hearing through his personal mobile phone from his own room, however the Tribunal determined that the hearing should proceed formally through the established audio-visual procedure and equipment available for such hearings at the detention centre facility.
THE PROTECTION VISA APPLICATION
The Tribunal has before it the protection visa application form lodged by the applicant on 29 November 2023.
The applicant, in his protection visa application form, sets out his reasons for claiming protection, which are summarised as follows:
a.The applicant is seeking protection in Australia, so he does not have to return to India.
b.The applicant was under coercion to join the Khalistan Commando Force and the fight for a separate state known as the ‘Khalistan movement’. He fears if he returns to India, the Indian Government and other state-sponsored actors will harm him for being a Sikh and his actual or imputed involvement in the Khalistan movement.
c.The applicant since his teenage years has been a bisexual for which he was previously harmed. He fears if he returns to India, he will be harmed if he were to openly conduct a same-sex relationship.
d.The applicant’s [offence 1] case in Melbourne has been picked up in India through online media reports by unknown persons in his hometown where these persons have made written threats on his life if he returns to India.
e.The applicant has mental health problems, and he fears he will not be able to access or will be denied mental health treatment in India causing him harm.
The applicant also provided a document titled ‘Statement of Additional Protection Claims’ dated 27 November 2023 as part of his protection visa application which the Tribunal has considered. This document provides more detailed information to the above protection claims and has reference links to materials the applicant sought to have taken into account in his matter. He also provided a statement dated 17 May 2024 and entitled ‘A journey of my life’ which the Tribunal has also considered. He also provided the DFAT Report for India and relied on it.
TRIBUNAL PRE-HEARING INFORMATION FORM
The applicant, in the responses provided on the Tribunal pre-hearing information form, advised that he would be relying on further material and witnesses which he would submit as part of the hearing.
The Tribunal was therefore mindful to ensure the applicant had a meaningful opportunity and procedural fairness accorded to permit him to put forward his witnesses and materials before, during and after the hearing.
HEARING BEFORE THE TRIBUNAL
The applicant attended before the Tribunal to give evidence and make submissions in support of his claims for protection. The applicant also called witnesses in support of his claims.
The evidence given during the hearing is set out below.
THE APPLICANT’S EVIDENCE
The applicant said he was born in Uttarakhand, Dehradun in India.
He is presently [Age] years of age.
His parents are alive and living in Panchkula, Haryana in India. He has no brothers or sisters, and he is the only child.
The applicant completed both primary and high school. Then he attended [Institute] where he studied to be [an occupation 1]. He completed this training in [year]. The program consisted of a two-year program of study and further two-year apprenticeship equating to approximately four years.
The applicant said he was not sure, but he did not recall doing any work after his studies from [year range].
In January 2008 the applicant came to Australia on a student visa.
From 2008 to 2014 the applicant studied various courses in Australia including [Courses].
In November 2014 the applicant went back to India for 7 to 8 months as he had a ‘no further stay’ condition on his visa which required him to leave Australia and make any further visa application offshore.
The applicant came back to Australia in 2015 on a temporary work visa, Subclass 457.
He worked in [Suburb] at [Employer] till 2018.
The Tribunal asked the applicant which protection claim he would prefer to address first, and the applicant replied that he had no preference.
The Tribunal asked the applicant to discuss his claim based on his sexual orientation.
The applicant stated he would not be able to obtain employment, and his family, neighbours and relatives would not accept him being a bisexual.
The applicant stated he would not be able to obtain mental health support on account of him being a bisexual.
The applicant stated he would not be treated like a man due to his bisexuality.
The applicant stated he was pressured by his parents to return to India in 2017 and get married. The Tribunal asked the applicant why he would feel pressured when he was so far away living in Australia. The applicant replied that in his culture he must listen to whatever his parents ask of him.
The Tribunal said to the applicant that it seemed the applicant went voluntarily back to India and got married. The applicant denied this and said that he respected his parents, and he did what was asked of him.
The Tribunal asked the applicant whether he had divorced his wife in India. The applicant replied that he had not divorced her but that it had been a very long time since he had any contact with his wife.
The Tribunal referred to the applicant’s submitted written materials which stated that he and his same-sex partner [Mr A] wished to marry in Australia. The Tribunal asked the applicant how he would marry [Mr A] when the applicant was still married to his wife in India. The applicant replied that he would do something about this, and he had heard that if a person is not in touch with their spouse for 5 to 6 years, the marriage is considered ‘dead’. He said he would ‘work’ on this.
The Tribunal said to the applicant that since he had not divorced his wife in India, it may suggest to the Tribunal that he is still in a relationship with his wife. The applicant denied this. The applicant stated that as he was in detention, he had no assistance with the process of seeking a divorce in India.

The Tribunal drew the applicant’s attention to his protection visa application where he stated he was married and not separated. The applicant replied that he filled in the application form to the best of his ability and he did not have professional assistance in drafting his protection visa application.
The Tribunal drew the applicant’s attention to his previously lodged protection visa application which he subsequently withdrew. The Tribunal asked the applicant why he did not raise his fear of harm on account of his sexuality in this previous application. The applicant replied he was feeling ashamed and did not state his claim based on his sexual orientation, and that only after taking advice from a migration agent did the applicant state his sexual orientation claims in the present protection visa application that is under review before the Tribunal.
The Tribunal pointed out to the applicant that he came to Australia in 2008 and began a same-sex relationship with [Mr A] in July 2022. However, between 2008 and 2022 the applicant has not given any information or evidence of past relationships with other men. The applicant replied that he had relationships with lots of men. Some were his customers. These were one-night stands.
The Tribunal asked the applicant then why did he not mention the other same-sex relationships in his sexual orientation claim details in his protection visa application. The applicant replied that he wrote whatever came to his mind.
The applicant discussed the event where he was caught with his friend [Mr E] at the [Location] in either 1997 or 1998. He said the police caught them hugging and about to start having sex whilst hidden in the garden bed. The gardener spotted them and told the police. Two police officers came and threatened and slapped them. They asked for their parents’ address. The matter was resolved by paying the police officers a bribe of 500 rupees.
The Tribunal said to the applicant that the [Location] incident would have occurred when he was a teenager between [age range] years of age, and why would a teenager in conservative India in the late 90s engage in same-sex conduct in public. The applicant replied that the [Location] incident did really happen.
The Tribunal said to the applicant that the [Location] incident did not seem believable. The Tribunal asked the applicant how he was spotted by a gardener if he was hiding in the garden bed and engaging in the conduct. The applicant replied that he did not know how he was discovered, he was not an investigator.
The applicant discussed an incident that happened whilst he was mopping and cleaning his classroom during school in Rajpura. He said that two boys would stay back and clean the classroom whilst the other students went to the prayer room outside. On this occasion, some students came in and caught him kissing [Mr E].
The Tribunal said to the applicant that it did not seem believable that the applicant would engage in such a risky activity when the applicant’s own evidence was that children at the school suspected he liked other boys so it did not seem reasonable that the applicant would take such a risk. The applicant replied that he did not know that the children could come back early to the classroom.
The Tribunal said to the applicant that the incident at the [Location] and the incident at the school are very important events, however they were not put in his protection visa application. They were only being raised at the Tribunal stage on review. This might cause the Tribunal not to believe that these incidents occurred. The applicant replied that [Mr E] recently reminded him of these two events which refreshed his memory.
The Tribunal said to the applicant that he was making up the [Location] and school cleaning incidents. The applicant replied that he could not say much except that they really did happen.
The Tribunal referred to the 450 to 500 pages of text messages which the applicant had scanned and submitted to the Tribunal consisting of various WhatsApp messages between the applicant and [Mr A]. The Tribunal asked the applicant why the sending number is an overseas number and not a local Australian mobile number. The applicant replied that he did not know why [Mr A] used a foreign number. The applicant agreed [Mr A] also had an Australian number. However, the WhatsApp messages came from his foreign number.
The Tribunal said to the applicant that the materials submitted suggested he wished to do various events with [Mr A] including such matters as marriage, adopting children, buying a house and starting up a business. The applicant agreed.
The Tribunal then said to the applicant that in the large volume of 450 to 500 pages of WhatsApp text messages filed, there is no discussion of such matters as marriage, adopting children, buying a house and starting up a business. The applicant replied that he would call [Mr A] and talk about such things face to face. There was no need to text about such matters as they lived together in detention.
The Tribunal drew the applicant’s attention to various text messages where the word ‘bro’ was used in referring to and addressing [Mr A]. This might suggest to the Tribunal that [Mr A] was not his partner but a friend. The applicant replied that he calls everyone ‘bro’ and he could not always use a term such as ‘my love’ all the time.
The Tribunal said to the applicant that [Mr A] was also in immigration detention and there was a possibility that both were staging a fake relationship to obtain a better visa outcome. The applicant denied this.
The Tribunal said in summary to the applicant that the sexual orientation claim did not seem credible, that it seemed made up. The applicant denied this and said this was his past and part of him and he has told the truth and he does not have a ‘time machine’.
The applicant turned to discuss his claim that his conviction for a sexual offence in Australia had been picked up through media reports resulting in serious threats against him by unknown persons in India if he were to return.
The applicant stated that unknown persons threw stones at his parents’ house with messages attached to the stones, in the descriptive sense that a stone was placed inside a piece of paper with threats written on it, crumpled up into a ball and hurled at his parents’ house.
The applicant said the stones with messages came through a window and were discovered by his mother.
The applicant said that the messages threaten to kill him and harm him if he returns to India.
The Tribunal drew the applicant’s attention to an email sent by the applicant’s mother setting out the stone threats dated 20 December 2023 and attaching scans of the threatening documents. The Tribunal pointed out to the applicant that 20 December 2023 is the same date his protection visa application was refused. This suggested to the Tribunal that the stone threat claim was made up and a fabrication. The applicant denied this. He said he might have spoken to his parents on 20 December 2023 after the protection visa refusal and they might have mentioned the stone threats and then emailed him the scanned threat materials.
The Tribunal drew the applicant to the language of the threats written on the scanned materials. The Tribunal pointed out that the threats were written in English. The Tribunal said to the applicant that it did not seem logical that threats written on a piece of paper in his village in India would be in English, and such threats would have been written in Punjabi. The applicant replied that only the person who threw the threats with the stone could answer this question.
The Tribunal said to the applicant that the threat documents sent by his mother on 20 December 2023 do not seem credible. The applicant said he did not know, he does not have any knowledge and the proof was in front of the Tribunal.
The Tribunal referred to the email of 1 April 2024 enclosing further threat documents from the applicant’s mother. The Tribunal pointed out that the threats were also written in English but thrown in his village in India. This suggests the documents are not credible.
The Tribunal referred to the 1 April 2024 threat documents and drew the applicant to the Hindu religious logo on the top right corner of specific documents. The Tribunal pointed out the entire document was visually crumpled, but the Hindu logo on the upper right corner was clean and crisp and superimposed on the specific documents without any crumples and had border marks to show it had been transferred on the documents after the crumpled documents were scanned. This suggested these documents were fake. The applicant replied he did not know.
The Tribunal said to the applicant the documents sent in the email of 20 December 2023 and 1 April 2024 to him by his mother were fake documents designed to assist his protection claim. The applicant denied this.

100. The Tribunal in summary stated the claim with respect to the media reports of his sexual conviction and threats in India was not credible. The applicant denied this.
101. The applicant then proceeded to discuss his fears arising from his involvement in the Khalistan movement and harm if he returned to India.
102. The Tribunal clarified whether he was also making a separate protection claim on account of being a Sikh, the relevance being that there were many Sikh people living unharmed in India. The applicant clarified that the point of him being Sikh was related to his political opinion and not a separate claim.
103. The applicant stated he was a member of Shiromani Akali Dhal (SAD), a political movement in India that politically advocates for the Khalistan movement.
104. The Tribunal asked the applicant to discuss his role in SAD. The applicant stated he supported Babbar Khalsa and he was warned not to be associated with them.
105. The Tribunal said to the applicant that his claim was that he could not return to India as he would be harmed for his political involvement in SAD and his belief in the Khalistan movement. However, the applicant returned to India twice, for his ‘no further stay’ period in 2014 and also for his wedding in 2017. The Tribunal noted that nothing harmful happened to the applicant on his two trips back to India.
106. The applicant replied by stating he always stayed home during his two return trips to India, he only left the house on his no further stay trip in 2014 to attend his IELTS exam, and in 2017 he only went for his wedding.
107. The Tribunal asked the applicant whether he celebrated his wedding with a honeymoon. The applicant replied that he and his wife went to Goa for their honeymoon.
108. The Tribunal said to the applicant that he went outside his house for his IELTS test in 2014 and in 2017 he went to Goa on honeymoon and no harm occurred to him. This suggested the claim that his involvement in SAD and the Khalistan movement would result in serious harm on his return to India was not credible.
109. The applicant replied by stating he managed to avoid unknown people on both trips by staying in his house in India.
110. The Tribunal said to the applicant that it did not make sense that if the applicant feared political harm, that he would make two trips back to India.
111. The applicant stated he had to go back to India in 2017 because his parents pressured him to get married.
112. The Tribunal asked the applicant why he did not tell his parents that his life was in danger due to his political involvement in SAD and his belief in the Khalistan movement, and he could not therefore return for a wedding in 2017. The applicant replied that his parents wanted him to come back to India to get married so he went.
113. The Tribunal said to the applicant that if he went back to India because his parents asked him to, then it did not seem like returning to India would be a risk.
114. The Tribunal drew the applicant to the 134-page letter of support of 6 May 2024 the applicant obtained from the SAD and filed in support of his claim. The Tribunal said to the applicant that the document read as a political statement with a brief introduction and conclusion added in.
115. The Tribunal drew the applicant to Khalistan movement supporters living overseas in places such as Canada and the United States who were vocal about their support for Khalistan.
116. The Tribunal referred to the applicant being a member of SAD since 2007 or 2008 and the applicant having been in Australia for a long time. However, the applicant whilst living in Australia did not have any evidence or information of actively supporting the Khalistan movement in comparison to supporters living in Canada and the United States.
117. The applicant replied that his parents asked him not to openly support the Khalistan movement as he was an only child and due to the dangers involved.
118. The Tribunal said the applicant’s reply did not make sense. If the applicant’s parents asked him not to openly support Khalistan due to the dangers to the applicant, then why would the applicant’s parents ask him to come to India in 2017.
119. The applicant stated he was referring to 2008 and 2009.
120. The Tribunal said to the applicant that even taking into account 2008 and 2009, the applicant’s response did not make sense with regard to the applicant’s return to India in 2017.
121. The applicant stated he had a private wedding in 2017 and was able to thus keep a low profile.
122. The Tribunal replied that a private wedding did not seem logical when the applicant then went to Goa for a honeymoon which is a very public place.
123. The applicant then discussed his mental health claim.
124. The applicant referred the Tribunal to the DFAT Country Information Report for India with respect to mental health treatment. The Tribunal discussed the relevant aspects of the DFAT Country Information Report for India with respect to access to medical treatment with the applicant and stated that the country information does not suggest that treatment will not be available.
125. The applicant stated that mental health treatment was for the rich and upper class and not for people like him. The applicant stated he could not afford mental health treatment.
126. The Tribunal said to the applicant that the applicant was able to afford two trips to India including a honeymoon to Goa.
127. The applicant replied he did not presently have any money.
128. The Tribunal said that his WhatsApp text messages to [Mr A] showed he was giving money to him.
129. The applicant stated he paid $4,000 for a psychologist’s report and had no more money.
130. The Tribunal said to the applicant that the country information does not suggest the applicant will be denied mental health or medical treatment.
131. The applicant stated he would not be able to afford treatment as he would not be able to obtain employment due to his political profile and his sexual orientation.
132. The applicant concluded his evidence by asking the Tribunal to take into account his filed materials.
EVIDENCE OF [MR A]
133. [Mr A] gave evidence via mobile telephone from the Detention Centre.
134. [Mr A] advised the Tribunal that he was the same-sex partner of the applicant.
135. He had been in a relationship with the applicant since July 2022.
136. The Tribunal asked him to clarify the number he used for his WhatsApp messages which was filed by the applicant. [Mr A] confirmed the number in the WhatsApp messages was his phone number from India. He also had an Australian mobile number.
137. The Tribunal referred to [Mr A]’s filed statement that he wished to marry the applicant, adopt children, buy a house and run a business with the applicant. The Tribunal questioned why none of these matters are discussed in the large volume of 450 to 500 pages of WhatsApp text messages submitted in evidence by the applicant. [Mr A] replied that such matters were discussed face to face with the applicant.
138. The Tribunal directed [Mr A] to various WhatsApp messages filed in evidence where he and the applicant referred to each other as ‘bro’ and that this might suggest they are only friends. [Mr A] stated the term ‘bro’ was slang only.
139. The Tribunal asked [Mr A] the present status of his detention. [Mr A] said he was awaiting a court hearing and there was also the matter of his seeking a Bridging Visa E and a temporary graduate visa.
140. The Tribunal said to [Mr A] that it seemed his relationship with the applicant might not be genuine. [Mr A] denied this and stated he was the applicant’s genuine partner.
141. [Mr A] stated he and the applicant would get married.
142. The Tribunal asked [Mr A] how he would marry the applicant when the applicant was already married to someone in India.
143. [Mr A] stated that the applicant’s marriage was 7 years ago and it was ‘dead’.
EVIDENCE OF [MRS B]
144. [Mrs B] is the mother of the applicant.
145. [Mrs B] gave evidence via mobile telephone from India.
146. [Mrs B] is approximately 64 years of age.
147. The Tribunal attempted to discuss the significance of the date of 20 December 2023 when an email was sent from [Mrs B] to the applicant attaching the threatening letters. However, [Mrs B] stated she did not understand the significance of the date.
148. [Mrs B] said she was suffering from depression and could not recall dates.
149. [Mrs B] did agree that the applicant’s protection visa refusal occurred on the same date as she sent the email of 20 December 2023.
150. The Tribunal asked [Mrs B] why she waited till 20 December 2023 to tell the applicant she has been receiving threats against him. [Mrs B] replied she had her own problems and could not write an email until she received help from a family member.
151. The Tribunal asked [Mrs B] whether she knew why the threats were written in English. [Mrs B] said she did not know.
152. The Tribunal asked [Mrs B]’s about her email of 1 April 2024. However, [Mrs B] stated she did not recall the date.
153. The Tribunal asked about the Hindu logo on certain threat documents sent on 1 April 2024. However, [Mrs B] stated she did not look at the documents properly and she is suffering from depression and had a poor memory.
154. The Tribunal said to [Mrs B] that the logo inserted on specific documents sent on 1 April 2024 are fake. [Mrs B] replied stating the Tribunal could say what it wanted but they did get threats.
155. The Tribunal asked [Mrs B] why she did not go to the police when the threats were made. [Mrs B] said that the police would only make them sit and wait as Sikhs are second-class citizens.
WRITTEN STATEMENT OF [MR E]
156. The Tribunal noted that the applicant filed an unsworn statement from [Mr E] dated 1 April 2024.
157. The Tribunal was concerned that the identity of [Mr E] and truth of the statement of 1 April 2024 both were not verified and requested with the applicant that the statement of [Mr E] be sworn and filed and that [Mr E] be available to give evidence via telephone from India.
158. The applicant forwarded an email chain dated 28 March 2024, 1 April 2024 and 27 April 2024 purportedly from [Mr E] stating that the relationship with the applicant was many years ago, that [Mr E] was now married with children, employed, and he was not willing to give sworn evidence or provide a sworn statement that may identify him.
159. The Tribunal has read the unsworn statement of [Mr E] dated 1 April 2024. [Mr E] states he has known the applicant since he was [age] years of age, that they fell in love and started going out everywhere. Their relationship was from 1997 to 2000. [Mr E] described an incident at the [Location], Chandigarh where he and the applicant were caught engaging in sexual activity and bribed the police to escape. He also described how they both were assaulted by students in school who caught them kissing during a classroom cleaning activity.
160. However, the Tribunal is not able to give any weight to this document as it is unsworn and the maker of the statement refused to swear to it or give oral evidence before the Tribunal.

161. The Tribunal has no way of knowing if [Mr E] exists as the emails purportedly from [Mr E] of 28 March 2024, 1 April 2024 and 27 April 2024 state he is not willing to give a sworn statement or appear before the Tribunal to give oral evidence.
162. The statement of [Mr E] of 1 April 2024 concludes by stating ‘If you have any questions, please feel free to contact me directly’. However, when requested to swear the statement and give evidence before the Tribunal, [Mr E] has refused to.
163. This is despite the Tribunal informing the applicant he could advise [Mr E] that the Tribunal would keep his details confidential and Tribunal hearings were not open to the public.
WRITTEN STATEMENT OF [MR F]
164. The applicant supplied emails purportedly from [Mr F] dated 1 April 2024 and 27 April 2024. [Mr F] suggested he might not be able to have his statement sworn as he would need to attend court to witness it and disclosing matters about the Khalistan movement could cause him harm.
165. The applicant also supplied an unsworn statement from [Mr F] dated 31 March 2024. [Mr F] stated he had known the applicant since 2001. They both used to attend a Sikh temple at [Location] where they were exposed to the Khalistan movement. In this statement [Mr F] discussed matters concerning the applicant’s involvement with SAD, the Khalistan Commando Force and Babbar Khalsa. There is specific discussion of an event where they both attended a police station to lodge a complaint however were themselves detained and assaulted for their suspected involvement in the Khalistan movement.
166. [Mr F] concludes his written statement by stating ‘If you have any questions about this statement, please feel free to contact me via email.’ However, [Mr F] did not wish to give evidence before the Tribunal or provide a sworn statement. This is despite the Tribunal advising the applicant that Tribunal hearings are confidential and not open to the public.
167. The Tribunal also notes with concern that the emails of [Mr F] dated 1 April 2024 and 27 April 2024 have a picture on them beside [Mr F]’s name depicting a Sikh person and the Khalistan movement symbol. This seemed illogical to the Tribunal when [Mr F] was stating he did not want people to know he was a Khalistan supporter, but his email signature has the Khalistan logo. The Tribunal has doubts as to the authenticity of the emails of [Mr F].
168. [Mr F] has also refused to give sworn evidence before the Tribunal.
169. The Tribunal does not place any weight on the unsworn evidence of [Mr F]. The email of 1 April 2024, the email of 27 April 2024 and unsworn statement dated 31 March 2024 cannot be verified and neither can the existence of [Mr F].
EVIDENCE OF [MR C]
170. [Mr C] is a character witness for the applicant.
171. [Mr C] gave evidence via telephone and also provided a written sworn character reference.
172. The Tribunal accepts [Mr C]’s character reference dated 1 April 2024 for the applicant. In there he stated he has known the applicant for approximately 14 years. They met whilst playing cricket in the south-east suburbs of Melbourne. They had also briefly worked together as [occupation 1]s.
173. [Mr C] in oral evidence spoke well of the applicant, and confirmed his character reference of 1 April 2024. He was willing to help the applicant.
174. The Tribunal has taken into account the character reference of 1 April 2024 and oral evidence given by [Mr C] at the hearing. The Tribunal accepts that the applicant engages in community sports, is charitable with his time, a competent [occupation 1], and helps out at local Sikh temples.
EVIDENCE OF [MR G]
175. [Mr G] is a character witness for the applicant.
176. [Mr G] is [an occupation] and had limited availability to give evidence, but the Tribunal does understand he was available earlier on during the hearing day for a brief period but had to return to work and was not further available despite the Tribunal being willing to make time during the course of the hearing. Due to his unavailability he was excused from giving oral evidence on the basis that the Tribunal has accepted his character reference discussed below and there was no suggestion that [Mr G]’s evidence went beyond its contents or there was more evidence that went beyond character. This was raised with the applicant who did not make any objections.
177. [Mr G] gave a written character reference dated 1 April 2024 for the applicant. The applicant had lived with [Mr G] for approximately 4 to 5 years and they have known each other for over 10 years. [Mr G] also confirmed the applicant’s charitable conduct and helping out at local Sikh temples. [Mr G] also stated that he would be willing to assist the applicant if he was released from detention.
178. The Tribunal has taken into account the character reference given by [Mr G]. The Tribunal accepts that the applicant is a competent [occupation 1] and is charitable with his time and helps out at local Sikh temples.
EVIDENCE OF [MR D]
179. The Tribunal heard evidence from [Mr D] who was also in detention at the same Detention Centre facility as the applicant and [Mr A].
180. [Mr D] also provided a sworn statement dated 20 May 2024.
181. The Tribunal asked [Mr D] the present status of his detention. [Mr D] replied that his visa had expired and he was also seeking a protection visa.
182. [Mr D] had been in detention for the past 7 months.
183. In that 7 months he had witnessed that the applicant and [Mr A] spent a lot of time together.
184. The Tribunal asked [Mr D] whether he was friends with the applicant and [Mr A]. [Mr D] replied he was friends with them.
185. The Tribunal asked whether he was giving evidence of their relationship to help the applicant with his protection visa. [Mr D] denied this.
186. [Mr D] said the applicant and [Mr A] behave like partners and couples do. No elaboration, particulars or specific information were given by [Mr D].
MATERIAL SUBMITTED BY THE APPLICANT
187. The applicant submitted written materials for consideration including:
a.Email of 1 April 2024 from [Mr A];
b.Email of 2 April 2024 from the applicant enclosing unsworn statements from [Mr E], [Mr F], [Mr G] and [Mr C];
c.Email of 29 April 2024 from the applicant enclosing sworn statutory declarations by [Mr G], [Mr C] and [Mr A];
d.Email chain of 1 April 2024 and 27 April 2024 from [Mr F];
e.Email chain of 28 March 2024, 1 April 2024 and 27 April 2024 from [Mr E];
f.Email of 1 April 2024 from [Mrs B] enclosing threat letters;
g.Email of 20 December 2023 from [Mrs B] enclosing threat letters;
h.SAD receipt of 3 June 2007;
i.SAD receipt of 3 January 2008;
j.Letter from SAD – 134 pages – dated 6 May 2024;
k.Applicant’s 22-page statement dated 17 May 2024 and entitled ‘A journey of my life’;
l.Statutory Declaration of [Mr A] dated 3 April 2024;
m.Bundle of WhatsApp messages – approximately 450 to 500 pages;
n.Applicant’s email of 22 May 2024 enclosing an employer reference and income tax material;
o.Psychologist Report of [Mr H] dated 21 May 2024;
p.Statutory Declaration of [Mr D] sworn on 20 May 2024;
q.Applicant’s qualifications from [University] and [Organisation];
r.DFAT Country Information Report on India dated 29 September 2023;
s.Tribunal Assessment of Credibility Guidelines of July 2015;
t.UK Home Office/Independent Advisory Group Country Information on India, version 5.0, 2023 – Sexual orientation and gender identity expression;
u.Photographs of the applicant showing injuries sustained in detention.

188. The Tribunal has read, considered and engaged with each of the above materials provided by the applicant along with the applicant’s review application.
189. The reading and analysis of the materials submitted by the applicant took considerable time due to the contents approximating 1,000 pages.
190. The Tribunal accepts the materials submitted by the applicant as showing the existence of a political opinion held by individuals and groups, such as SAD, advocating for a separate state of ‘Khalistan’ also referred to as the Khalistan movement.
191. The Tribunal accepts the materials submitted by the applicant as showing the existence of discrimination on the basis of sexual orientation in India, in particular against homosexuals and transgender persons.
CREDIBILITY – LEGAL PRINCIPLES
192. The applicant’s oral and written evidence including his responses to the Tribunal’s questions at the hearing in relation to his claims raises issues going to credibility.
193. Credibility findings are a serious matter and ought to be undertaken cautiously in accordance with the applicable legal principles as adverse findings may result in an applicant’s evidence and claims not being believed which in turn may result in the decision under review being affirmed.
194. The Tribunal, before embarking on a credibility assessment, sets out the relevant principles to be applied.
195. 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. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out, per MIEA v Guo & Anor.[3]
[3] (1997) 191 CLR 559 at 596.
196. 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 decision maker to establish the relevant facts, per Yao-Jing Li v MIMA.[4]
[4] (1997) 74 FCR 275 at 288.
197. A decision maker is not required to make the applicant’s case for him or her, per Prasad v MIEA.[5]
[5] (1985) 6 FCR 155 at 169–70.
198. It is for an applicant to provide evidence and arguments in sufficient detail to enable the decision maker to establish the relevant facts, per Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat.[6]
[6] [2006] FCAFC 61 at [76].
199. The Tribunal is not required to accept uncritically any and all claims made by an applicant, per Randhawa v MIEA.[7]
[7] (1994) 124 ALR 265 at 278.
200. In determining whether an applicant has a well-founded fear of persecution, the Tribunal may need to resolve questions of credit, attribute weight to particular evidence and consider the inherent improbability of events, per Minister for Immigration and Ethnic Affairs v Wu Shan Liang.[8]
[8] (1996) HCA 6 per Brennan CJ, Toohey, McHugh and Gummow JJ at [51].
201. Where the Tribunal is not confident that an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question per MIMA v Rajalingam.[9] The Tribunal must not foreclose reasonable speculation about the chances of a hypothetical future event occurring.[10]
[9] (1999) 93 FCR 220.
[10] AEY17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 562
202. The Tribunal is also mindful of the United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status which states that ‘if the applicant’s account appears credible, he (or she) should, unless there are good reasons to the contrary, be given the benefit of the doubt’ and ‘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’.[11]
[11] United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at [196] and [203], available at In determining credibility, the Tribunal must not take an over-stringent approach that may result in an unjust exclusion of a portion of evidence, per Guo v MIEA; Pan v MIEA.[12]
[12] (1996) 64 FLR 151 per Foster J at 194.
204. 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, per Selvadurai v Minister for Immigration and Ethnic Affairs.[13]
[13] Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J.
205. Even where it is reasonably open for the Tribunal to find that inconsistent evidence has been given, the significance of that inconsistency and the weight to be attached to it needs to be assessed. This requires consideration of the significance of the inconsistency having regard to an applicant’s case as a whole and whether the inconsistency is on a matter central to an applicant’s case or peripheral and involves an objectively minor fact. Consideration should also be given to the particular challenges facing asylum seekers in giving their evidence, that they may reasonably expect the opportunity to elaborate their claims at a hearing and whether there is a reasonable explanation for the inconsistency, per AVQ15 v Minister for Immigration and Border Protection.[14]
[14] [2018] FCAFC 133 at [28].
206. Section 423A of the Act provides that in making a decision on a review application, the Tribunal is to draw an inference unfavourable to the credibility of the claim or the evidence if the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made. See the relevant discussion in EQU19 v MICMSMA[15] upheld on appeal in EQU19 v MICMA.[16]
[15] [2022] FedCFamC2G 609 at [100].
[16] [2023] FCA 1182 at [51].
207. Section 5J(6) of the Act requires the Tribunal in assessing a well-founded fear of persecution to disregard conduct engaged in by the person in Australia unless the person satisfies the Tribunal that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
REASONABLE ALLOWANCE AS TO DATES AND TIMES
208. The Tribunal notes that the applicant has had an eye injury in detention.
209. The Tribunal has also had regard to [Mr H’s] mental health assessment for the applicant that the applicant suffers from complex post-traumatic stress disorder (PTSD).
210. The Tribunal also has had regard to the applicant maintaining that it is difficult for him to recollect specific dates and times.
211. It is not the role of the Tribunal to pick apart an applicant’s evidence to uncover little discrepancies, per Sundararaj v Minister for Immigration and Multicultural Affairs.[17]
[17] [1999] FCA 76 per Burchett J.
212. The Tribunal in undertaking its analysis and assessment makes reasonable allowance for the applicant’s recollection of specific dates and times.
ANALYSIS OF SEXUAL ORIENTATION CLAIM
213. The Tribunal refers to the evidence given by the applicant in support of his claim for protection on the basis of his sexual orientation.
214. The Tribunal analyses the parts of the applicant’s evidence that caused the Tribunal to have concerns with the credibility of this claim.
215. The Tribunal asked the applicant why he had not mentioned in his first protection visa application which he submitted and withdrew his claim based on sexual orientation. The applicant said he was embarrassed about revealing his sexual orientation to the Department and did not make this claim in his first protection visa application. After subsequently discussing the matter with a migration agent, he withdrew the previous protection visa application and the applicant then in the present protection visa application under review made the claim based on his sexual orientation. The Tribunal does not believe this. The applicant presented a strong narrative that he was able to take significant public risks from a young age with respect to his sexual orientation such as the [Location] event and the school classroom cleaning event and that on return to India he would be a member of the LGBTQI community resulting in him suffering harm. A lengthy narrative of taking such open and public risks in India with respect to his sexual orientation does not sit comfortably with being embarrassed in Australia to present a confidential written claim for protection based on his sexual orientation to the Department. Furthermore, it makes no sense that the applicant did not want to disclose his sexual orientation to the Department when he also is saying in evidence that he conducts an open same-sex relationship in the Detention Centre which is managed by the Department and therefore making his sexual orientation known to the officers of the Department. The relationship evidence submitted suggests the applicant and [Mr A] do not hide their same-sex relationship at the Detention Centre. They even produced a supporting witness from the Detention Centre. The Tribunal does not accept that the applicant was embarrassed to make a sexual orientation claim in his first protection visa application to the Department which he then withdrew so that he could make his sexual orientation claim in the current protection visa application. The Tribunal finds that the applicant did not make a sexual orientation claim in his first protection visa application because he did not have a credible sexual orientation claim. This is discussed further below.
216. The applicant gave evidence that he was pressured in 2017 by his parents to return to India and marry a girl. The Tribunal asked the applicant why he would feel pressured by his parents in India when he was so far away in Australia. The applicant stated that in his culture whatever the parents say, a child had to do. The Tribunal does not believe this part of the evidence given by the applicant. The Tribunal had the opportunity of listening to the applicant and observing the applicant. The applicant did not come across as a person who would be easily pressured into marriage taking into account he was in Australia and his parents were in India. He presented a narrative of being independent of the influence of his parents to the extent that he would have same-sex relationships in India since high school and also join a political movement such as the Khalistan movement, both of which went against his parents’ wishes. These acts do not suggest to the Tribunal that the applicant did whatever his parents wanted or that he was culturally obedient. The applicant also still has not divorced his wife in India. He never has listed himself as ‘separated’ in official material to the Department. The applicant gave evidence he considered his marriage ‘dead’. [Mr A] also gave evidence that he considered the applicant’s marriage to be ‘dead’. The Tribunal does not accept that the applicant’s marriage is ‘dead’. No evidence or information was provided by the applicant to suggest that the applicant had considered the marriage to be over and either had taken legal or official steps to end the marriage in India or communicated to his wife in India that he considered the marriage to be over. The Tribunal finds the applicant was not pressured by his parents or culturally motivated, but that he voluntarily returned to India in 2017 to get married and is still lawfully married to his wife.
217. The applicant gave evidence that in 1997 or 1998 he and [Mr E] were caught in a garden bed at the [Location] in Chandigarh, India by a gardener hugging each other and about to commence sexual activity, and two policemen were called by the gardener who slapped and threatened them but accepted a 500-rupee bribe and left them alone. The Tribunal does not believe that the applicant and [Mr E] in their mid-teens would have 500 rupees in 1997 or 1998 to bribe police with. In 1997 or 1998 the sum of 500 rupees would have been a large amount for a young teenage boy or even two teenage boys to carry when they would have still been in school, unemployed and there was no evidence the applicant or [Mr E] came from a wealthy family. It seems odd and unbelievable that the gardener who made the discovery did not obtain any bribe or payment. There was no evidence addressing how the loss of 500 rupees was explained to their parents. It is unbelievable that in the 1990s in conservative India two young teenage boys would go to a public garden to have sex. Furthermore, this event was never specifically mentioned in the applicant’s protection visa application. When asked by the Tribunal why this [Location] event was mentioned only at the Tribunal review stage, the applicant stated that his memory was recently refreshed by [Mr E], who coincidentally refused to swear his statement or appear before the Tribunal to give evidence as to the [Location] event. It is also odd that the applicant would forget or omit to discuss [Mr E] in his protection visa application but remember to contact [Mr E] to give evidence before the Tribunal. The Tribunal has serious doubts about the existence of [Mr E] due to his refusal to swear his statement or attend before the Tribunal to give evidence. There was no suggestion or claim that the applicant could not recollect this specific event due to a distant past or due to his mental health as he was able to provide detailed and very specific statements as to his past in his supplementary protection claim statements of 27 November 2023 and 17 May 2024. The Tribunal finds that the [Location] event did not occur and is a fabrication by the applicant to obtain a better visa outcome.

218. The applicant gave evidence that during his schooling in Rajpura, whilst the other students had gone to the prayer room, he and [Mr E] were on classroom cleaning duties when they started kissing and were caught by students coming back earlier than expected. The applicant stated he was not aware the students could come back earlier. The Tribunal does not believe this evidence. This would not have been the first time the applicant would have been on classroom cleaning duties, or even if it was his first time, he would have been witness to other students on previous classroom cleaning duties and would have known that students could come back into the room earlier than expected. It is not believable that the applicant would take the risk of kissing another boy while on classroom cleaning duties. No evidence was given of any school report being made to superiors such as a teacher or principal or disciplinary action being taken which would have been a reasonable outcome if such an event had occurred in school. It cannot be that some or all the students in the classroom kept quiet and did not gossip about the event or pass the discovery onto a teacher. If the applicant was caught and assaulted, the students would have made a significant issue of this. This was the 1990s in conservative India at the high school stage. This event was also not specifically mentioned in the applicant’s protection visa application but brought up before the Tribunal review stage. The applicant stated that his memory was recently refreshed by [Mr E], who coincidentally refused to swear his statement or appear before the Tribunal to give evidence as to the classroom cleaning event. It is also odd that the applicant would forget or omit to discuss [Mr E] in his protection visa application but remember to contact [Mr E] to give evidence before the Tribunal. There was also no suggestion or claim that the applicant could not recollect this specific event due to a distant past or his mental health as he was able to provide detailed and very specific statements as to his past in his supplementary protection claim statements of 27 November 2023 and 17 May 2024. The Tribunal finds the classroom cleaning event did not occur and is a fabrication by the applicant to obtain a better visa outcome.
219. The applicant states he last was in contact with [Mr E] in the year 2000. Through recently contacting friends, he has obtained a statement from [Mr E] for the Tribunal. The Tribunal does not accept that after 24 years the applicant was able to obtain the email address of [Mr E] specifically for the Tribunal hearing. Furthermore, [Mr E] has refused to swear his statement or give evidence before the Tribunal and only wishes to communicate by a private email address. This casts serious doubts on the existence of [Mr E] and the credibility of his evidence.
220. The Tribunal also notes certain evidential contradictions in the applicant’s sexual orientation claim with respect to [Mr E]. The Tribunal refers to the ‘Statement of Additional Protection Claims’ dated 27 November 2023 and submitted with the applicant’s protection visa application to the Department. The contradictions arising are as follows:
a.The applicant in his oral evidence at the hearing stated that he and [Mr E] were caught during high school in Rajpura kissing by other students who came back to class early. However, in the Statement of Additional Protection Claims dated 27 November 2023 and his protection visa application, the applicant in both documents in contradiction states that he was discovered as a bisexual during his trade school and apprenticeship.
b.The applicant’s Statement of Additional Protection Claims dated 27 November 2023 is a detailed document, including precise dates, events and weblinks to referenced material. However, the applicant does not discuss [Mr E] in his protection visa application or Statement of Additional Protection Claims dated 27 November 2023 yet remembered to contact [Mr E] to provide an unsworn statement for the Tribunal hearing.
c.Even allowing for the applicant not recalling specific dates and times in his protection visa application, the applicant does not mention generally [Mr E] or the [Location] event or the classroom cleaning event in his protection visa application or Statement of Additional Protection Claims dated 27 November 2023.

221. The Tribunal does not accept that the applicant engaged in the [Location] event, the school classroom cleaning event and the same-sex relationship with [Mr E].
222. Examining the applicant’s protection visa application and Statement of Additional Protection Claims dated 27 November 2023, the applicant does mention that he is a bisexual and he does mention that he has found someone in detention he wishes to have a relationship with. However, there is no specific naming or discussion of [Mr A]. The Tribunal is prepared to give the applicant the benefit of the doubt and accept that the reference to finding someone in detention is a reference to [Mr A].
223. The applicant gave evidence that he is presently in a same-sex relationship with [Mr A] who is also in detention with him. The applicant and [Mr A] both claimed they were in a relationship and they hoped to marry, adopt children, buy a house and run a business together. The applicant also supplied approximately 450 to 500 pages of WhatsApp text messages between himself and [Mr A] as proof of their relationship. The Tribunal accepts that they would have called each other ‘bro’ as a slang term and nothing adverse turns on this word. The Tribunal asked the applicant why such large numbers of text messages do not discuss relationship matters such as marriage, adopting children, buying a house or running a business together as stated in the materials filed with the Tribunal. The applicant replied that he preferred to discuss such matters in person with [Mr A]. The Tribunal did not find the text messages believable. They consisted of hundreds of pages of explicit images and emojis. Although there is nothing wrong with such explicit text messages, it was the lack of any relationship evidence in there that concerned the Tribunal. There was no discussion in the text messages that suggested a mutual commitment to a life together, social and financial planning and the expected emotional dialogue between two persons who love each other and are planning a committed future together as suggested by them at the hearing. The statements filed before the Tribunal were in contrast to the contemporaneous WhatsApp text messages. The Tribunal also heard from [Mr A] who stated he was in detention and also had visa applications and reviews on foot. [Mr A] agreed he had an Australian mobile number but conducted his relationship with the applicant through his Indian mobile number. [Mr A] presented as an unconvincing witness, ready to give evidence that would either assist the applicant or assist his own visa matters. Neither the applicant nor [Mr A] could give any evidence going to the dimensions of their relationship. For example [Mr A]’s sworn statement discusses their mutual commitment and hopes to marry, adopt children, buy a house and run a business together. However, his oral evidence before the Tribunal did not speak to such matters as asserted in the statement. Neither [Mr A] nor the applicant gave any evidence about wanting to adopt children, what business they might wish to engage in, their dreams of owning a house or how they would plan and conduct a wedding celebration.
224. The applicant did not list [Mr A] as his partner in his previous or current protection visa application despite the applicant asserting that he had been in a relationship with [Mr A] since July 2022. The applicant specifically answered ‘No’ as to whether he had a partner in Australia in his protection visa application.
225. The Tribunal raised with the applicant that he had arrived in Australia in 2008 and was saying he had been in a relationship with [Mr A] since July 2022, and that between 2008 and 2022 whilst in Australia he did not provide any information of having any other same-sex relationships. Then in detention he claims to have a same-sex relationship with [Mr A]. The applicant replied he had many one-night stands with his customers from [Employer] in [Suburb]. However, he was not able to give any details of these past relationships, these were not mentioned in his protection visa application and no evidence of any other relationship with men was given for his time in Australia. The Tribunal finds that the applicant never was in any same-sex relationships with men in Australia.
226. [Mr D] also provided a sworn statement dated 20 May 2024 and gave oral evidence at the hearing. The Tribunal notes that he has only known the applicant and [Mr A] for approximately 7 months and was only able to say that he had seen them together frequently and they behaved like a couple. The Tribunal was concerned that [Mr D] is a friend of the applicant and [Mr A]. There was nothing in his evidence that suggested a detailed knowledge or understanding of the relationship between the applicant and [Mr A]. The Tribunal notes that in his sworn statement [Mr D] confirms he is a ‘close friend’ of the applicant and [Mr A]. Also neither his sworn statement nor oral evidence gave any details of their relationship that would satisfy the Tribunal that the applicant was in a genuine same-sex relationship with [Mr A]. [Mr D] presented unconvincingly as he had his own protection visa review on foot and was only able to say that both [Mr A] and the applicant spent a lot of time together but was not able to give any detailed evidence that went to proving their relationship.
227. The Tribunal finds that the applicant’s relationship with [Mr A] is a fabricated relationship and the conduct surrounding it has been engaged in in Australia for the purpose of bolstering his claim for protection unlawfully. The details or evidence of the relationship with [Mr A] are not provided in the previous or current protection visa application. The applicant and [Mr A] in their oral evidence were both not able to give any detailed evidence as to their mutual commitment to their relationship which starkly contrasted with [Mr A]’s written claim that they wished to get married, run a business, own a property and adopt children. Their 450 to 500 pages of WhatsApp text messages did not give any meaningful insight into whether they were in a mutually committed relationship.
228. The Tribunal has also considered whether the applicant’s family, neighbours or relatives would cause him harm on account of his sexual orientation. The applicant did not give any evidence that he would suffer harm from these persons. The Tribunal does not accept this as the claim is not credible.
229. The Tribunal has also considered whether the applicant will not be treated like a man if he returns to India. The Tribunal does not accept this as the claim is not credible.
230. On the basis of the above credibility concerns, the Tribunal does not believe that the applicant has a genuine credible claim on account of his sexual orientation. The Tribunal has also considered whether there could be an imputation of being homosexual or bisexual upon the applicant but the applicant did not make such a claim, and neither did the evidence nor information before the Tribunal suggest that the applicant may be harmed based on an imputation of sexual orientation.
231. The Tribunal finds that the applicant’s sexual orientation claim is a fabrication and untrue. It has been created by the applicant to seek protection unlawfully.
232. The Tribunal will not assess the sexual orientation claim against the protection criterion as it is a fabrication.
ANALYSIS OF THREATS ARISING FROM MEDIA REPORTS
233. The Tribunal refers to the evidence given by the applicant in support of his claim for protection on the basis of media reports of his conviction for a sexual offence in Australia which have resulted in threats of serious harm to him if he returns to India by unknown persons.
234. The Tribunal analyses the parts of the applicant’s evidence that caused the Tribunal to have concerns with the credibility of this claim.
235. The Tribunal referred to the email of 20 December 2023 from the applicant’s mother stating that threats were received written on media reports of his sexual offence matter crumpled around stones and thrown into his house. She stated that the first stone-throwing event happened on 5 January 2023. The Tribunal raised the issue that 20 December 2023 is also the date his protection visa application was refused by the Department. The applicant replied that his mother may have brought up the threats when he informed her on 20 December 2023 of the protection visa refusal. The Tribunal does not believe that the applicant’s mother would have kept silent for almost a year about such serious threats including also the period when his protection visa application was on foot and still under consideration and only informed the applicant of the threats when the protection visa application was refused on 20 December 2023. The Tribunal also notes that the threats although made in the applicant’s village in India were written in English. This is not believable. The Tribunal also does not believe that the applicant’s mother on 20 December 2023 in India, being the same date the applicant’s protection visa was refused in Australia, managed to obtain the help of a family member on that same day to send out an email attaching the scanned threatening letters written in English.
236. The Tribunal refers to the email of 1 April 2024 which enclosed further letters threatening the applicant. Part of these letters although scanned showing signs of being crumpled up in a stone, on their upper right corner have a Hindu nationalist logo. The Hindu nationalist logo is however crisp and straight and does not appear crumpled. Further the Hindu nationalist logo appears to have been clearly pasted onto these letters after they were digitally scanned. The logo borders even show the attempts made at straightening and pasting the logo onto these documents after they were scanned to be emailed to the applicant. The documents also have the threats written in English despite being thrown in the applicant’s village in India. These documents are clearly fake documents and a fabrication.
237. The Tribunal attempted to discuss the above issues with the applicant’s mother however she kept saying in evidence she could not recollect dates or understand the issues as she is suffering from depression. The Tribunal as a matter of procedural fairness put these issues to the applicant’s mother as she sent the emails of 20 December 2023 and 1 April 2024, however the applicant’s mother could provide a substantial response or evidence that assisted the applicant or satisfied the Tribunal as her response consisted of saying she could not recollect dates and was suffering from depression and had her own problems.
238. The Tribunal asked the applicant’s mother why she had not reported the matter of these threats to the police. She replied by stating the police would only make her wait and they were Sikhs and second-class citizens. The Tribunal does not believe this response. The applicant had given evidence that his parents are in Panchkula which has a significant Sikh population. Even taking this response at its highest and giving the benefit of the doubt to [Mrs B], if the applicant’s mother was required to wait at a police station or suffer some minor discrimination in attending with the police, this minor inconvenience would be far outweighed by the need to report a serious threat of violence or death made against the applicant who is her only child. The Tribunal finds that these threats were not reported to the police as they are not real but fabricated.
239. The Tribunal was not impressed with the evidence of the applicant’s mother [Mrs B]. She did not present as a credible witness. Important questions put by the Tribunal such as the dates of the emails of 20 December 2023 and 1 April 2024 and the issue concerning the content of the threats were not answered by [Mrs B] as she kept saying she could not recollect dates and she was suffering from depression. This is in contrast to the contents of those emails sent by her or upon her instructions through a family member which are detailed and specifically mention dates and events and possible risks to the applicant. The Tribunal does not accept that [Mrs B] suffers from depression that adversely affected her ability to recollect dates or address the issues raised. The emails sent by her or on her instructions were detailed. There was nothing to suggest that [Mrs B] could not give evidence as to the matters discussed with her. The Tribunal formed the view that her answers at the hearing were a passive form of impeding the Tribunal from engaging in the relevant evidential inquiry with [Mrs B] so as to discover the truth about the stones thrown with the threatening letters.
240. Although pursuant to s 33(1)(c) of the Administrative Appeals Tribunal Act 1975, the Tribunal is not bound by technical rules of evidence, the Tribunal has made an attempt to raise the obvious credibility concerns it has with the emails of 20 December 2023 and 1 April 2024 which attach the threatening letters complained of and the scanned Hindu logo but has not been assisted by [Mrs B] in resolving the doubts as to this evidence. These issues were put to [Mrs B] as both emails have been sent by her, through the assistance of a family member.
241. To avoid evidential conflation, the Tribunal individually examined the threat documents of 20 December 2023 and separately examined the threat documents of 1 April 2024.
242. Even if [Mrs B]’s evidence is taken at its highest and given the benefit of the doubt, that she is not aware of the letters themselves and had nothing to do with the letters, this does not explain the significant lack of authenticity of both sets of documents.
243. The 20 December 2023 set of documents lacked credibility on the basis of the date being the same date as the applicant’s protection visa refusal and the threats being written in English.
244. The 1 April 2024 documents lacked credibility due to the pasting of the Hindu nationalist logo on the upper right-hand corner after the relevant documents were scanned for the purpose of being emailed to the applicant. The threats in them are also written in English. The evidence was that these letters were crumpled in weighted stone and thrown into the applicant’s house in India and found by [Mrs B], not that the letters were scanned and emailed to the applicant or the applicant’s mother directly by the persons making the threats. This shows that the uncrumpled clear Hindu nationalist logo was added after the relevant 1 April 2024 documents were thrown into the applicant’s house in India.
245. The Tribunal finds that both sets of documents threatening the applicant are a fabrication.
246. Even discounting that English was used to write the threats, there is no satisfactory explanation for the 1 April 2024 email of the documents for the pasting of the Hindu nationalist logo on the upper right-hand corner after the relevant documents were thrown and scanned for the purpose of being emailed to the applicant. There is also no satisfactory explanation for the 20 December 2023 email of the documents being scanned and emailed from India on the same day in Australia that the applicant’s protection visa application was refused.
247. The Tribunal also finds as not believable that these unknown persons would only make the threats resulting in the email of 20 December 2023 being the same day as the applicant’s protection visa application was refused and also resulting in the email of 1 April 2024 being a few weeks before the Tribunal hearing. Yet the online media reports about the applicant were initially published by [News source] on 19 April 2018. Even considering [Mrs B]’s email of 20 December 2023 which stated that the first stone-throwing event happened on 5 January 2023, this is almost 5 years after the media reports. The lengthy gap between the media reports (19 April 2018) and the emails (20 December 2023 and 1 April 2024) suggests that these documents are not credible. There is no satisfactory explanation for why these unknown persons would wait 4 to 5 years to start threatening the applicant and why [Mrs B] would only wait almost a year till the day the applicant’s protection visa was refused on 20 December 2023 to send the first email.

331. The Tribunal is not satisfied that the applicant meets the refugee criterion based on lack of access to mental health treatment.
Political opinion claim assessment
332. The applicant claims he would be persecuted if he returns to India due to his involvement, support and belief or imputation to that effect in the Khalistan movement and membership of SAD.
333. The Tribunal accepts that the applicant is a low-level and non-active member of the SAD holding a political opinion in favour of the Khalistan movement.
334. The applicant is only a paid-up member of SAD. He has membership receipts from 2007 and 2008. He is not however politically active. He is not a part of the executive of the SAD and does not have a high-profile political following in the Khalistan movement.
335. Even whilst being out of India and having the opportunity to be vocal and advocate for the Khalistan movement in Australia since 2008, the applicant does not have any past political history of being actively and seriously involved in the Khalistan movement.
336. There was no evidence of past harm upon the applicant due to his political opinion. The Tribunal notes that while past harm is not an essential step in the applicant demonstrating a well-founded fear, it may ground an inference that a person’s fear is well-founded, per the High Court in Abebe v Commonwealth.[51]
[51] [1999] HCA 14 at [191]–[192].
337. The Tribunal does accept that as part of his low-level political membership, the applicant would be subject to minor official and social discrimination. The applicant upon returning to India would become involved with the SAD by continuing his further membership, he might attend pro-Khalistan meetings at the local Sikh temple, and he may follow and subscribe to other famous people in the Khalistan movement such as the late Sidhu Moose Wala. The applicant did not give evidence or suggest that his political involvement in the SAD and the Khalistan movement would rise higher than this. The applicant did not claim or provide any evidence that upon his return to India he would seek to become highly political active for the Khalistan movement or seek to be politically active for SAD and Khalistan or build a high-level politically charged social media and political following. This minor official and social discrimination that the applicant would face does not amount to serious harm.
338. The Tribunal has also considered the applicant’s claim that he would be excluded from employment due to his political opinion. However, the applicant is a non-active believer in the Khalistan movement. Even taken at its highest that certain pro-nationalist or anti-Khalistan employers may not employ Khalistan supporters, that does not amount to serious harm. There is no evidence that every employer or a significant majority of employers in his hometown would refuse the applicant employment for being a non-active supporter of Khalistan.
339. The Tribunal does not accept that the applicant would suffer serious harm due to his non-active low-level political opinion if he returned to India as follows.
340. The applicant was permitted to enter and leave India in 2014 and 2017 trips through its immigration and border processes without official hindrance or prohibition. The applicant attended an IELTS testing centre in 2014 and also had a wedding and honeymoon in Goa in 2017 without any hindrance or harm.
341. The articles and materials submitted by the applicant have been sourced from the internet and make no mention of the applicant. They contain generic information and political views.
342. The extensive 134-page letter the applicant obtained from the SAD of 6 May 2024 in support of his claim contains large tracts of political material but does not mention or discuss the applicant’s personal involvement in the Khalistan movement that would suggest the applicant would be in danger if he returned to India.
343. The Tribunal does not accept, on the applicant’s low-level political belief, no political activity history and two harmless trips back to India in 2014 and 2017, that there is a real chance that if the applicant returned to India, he would be persecuted. The applicant did not give any evidence or information that would indicate or suggest to the Tribunal that he would engage in high-level political acts or such political acts that would bring him to the adverse attention of persons or entities or state actors opposed to the Khalistan movement who would then seek to harm the applicant. His past political profile or lack thereof does not support a finding that the applicant would engage in supporting the Khalistan movement in such a way upon his return to India that he would be harmed.
344. The lack of evidence or information also does not support any imputation that the applicant would be regarded as being higher-up the political rank or that he is a political target in India.
345. The applicant’s own evidence was that he listened to his parents with respect to his political participation in the Khalistan movement, and that even in Australia he obeyed his parents as the only son and kept a non-active low political profile. He said his parents did not want him to be vocal or openly supportive of Khalistan. The applicant gave evidence he obeyed his parents and did what his parents said due to his culture. This also lends support to the applicant returning to India and not being highly politically active in the Khalistan movement in the future.
346. The applicant whilst in Australia for many years has not been politically active in SAD and the Khalistan movement. In Australia he is free to be politically active. However, he has not been.
347. The intensity of the applicant’s political belief only goes as far as paying a minor fee for membership of SAD in 2007 and 2008 for which he supplied copies of receipts. The Tribunal notes no further membership receipts were given for the ensuing years of 2009 onwards.
348. The applicant has no social media following or political profile with respect to the SAD or the Khalistan movement.
349. The applicant could not produce any evidence or information that would suggest his deeper involvement in the SAD and the Khalistan movement which would result in a real chance of serious harm either now or in the reasonably foreseeable future. The Tribunal has also considered his returning and engaging in acts of political violence or actively participating in violent militant acts of the Khalistan Commandos however these actions would be beyond the scope of the refugee criterion which relevantly protects a ‘political opinion’ and the reasonable incidences of holding a political opinion but not outwardly manifested acts of violence.
350. There was no evidence or information which might suggest that the applicant might be imputed by state or non-state actors to be a high-level member of SAD and supporter of the Khalistan movement or a political threat by state and non-state actors.
351. On his return to India in 2014 for 7–8 months no harm occurred to the applicant and he did not engage in any active participation in the SAD and Khalistan movement. This uneventful 7–8-month period back in India suggests to the Tribunal that no serious harm would occur to the applicant if he were to return to India either now or in the reasonably foreseeable future.
352. Although the Tribunal accepts that the applicant would face some minor discrimination as a non-active political supporter of Khalistan, this does not amount to serious harm. The Tribunal is not satisfied the applicant’s claim that he fears he would face serious harm on account of his political opinion meets the criteria in s 5J(4)(b) of the Act.
353. The Tribunal is not satisfied that there is a real chance that the applicant would face serious harm on account of his political opinion either now or in the reasonably foreseeable future if he returns to India.
354. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution on account of his political opinion.
355. Although the applicant did not make this claim, the Tribunal has also considered whether the applicant would face persecution on account of being a Sikh as his mother gave evidence that Sikhs are considered second-class citizens. DFAT country information does suggest some minor discrimination against Sikhs but does not state that Sikhs suffer persecution on account of being Sikhs.[52] The Tribunal does not accept that there is a real chance the applicant will suffer serious harm on the basis of being a Sikh.
[52] DFAT Report – India – para 3.63.
356. The Tribunal has also considered the integers of the applicant’s accepted claims of his political opinion regarding Khalistan and his mental health treatment claims cumulatively. This includes considering the applicant being a non-active supporter of Khalistan and suffering from complex PTSD, however the Tribunal is also not able to find a real chance of the applicant suffering serious harm when considering both claims together.
357. The Tribunal has also had regard to harm the applicant might face due to his sexual offence conviction in Australia. His [offence 2] conviction would result in some discrimination for example from other people in his community who may not wish to associate with him and prospective employers who may not wish to hire him, and he would be required to make disclosure on official and employment documents, however such discrimination on its own or in cumulation with his political opinion and mental health would not amount to the applicant suffering a real chance of serious harm.
358. The Tribunal is not satisfied that the applicant meets the refugee criterion in s 36(2)(a) of the Act.
COMPLEMENTARY PROTECTION CRITERION ASSESSMENT
359. As the applicant has not met the criterion to be considered a refugee under s 36(2)(a) of the Act, the Tribunal has proceeded to consider whether the applicant meets the complementary protection criterion under s 36(2)(aa) of the Act.
360. Section 36(2)(aa) of the Act requires the applicant to satisfy the Tribunal that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia and returning to India, there is a real risk he will suffer significant harm.
361. Section 36(2A) of the Act exhaustively defines the types of harm that will amount to significant harm, providing that a person will suffer significant harm if they are arbitrarily deprived of their life, or the death penalty will be carried out on the person, or the person will be subject to torture, or to cruel or inhuman treatment or punishment, or to degrading treatment or punishment.
362. In MIAC v SZQRB it was held that the ‘real risk’ test under the complementary protection criterion imposed the same standard as the ‘real chance’ test under the refugee criterion.[53]
[53] [2013] FCAFC 33 at [246].
363. Both of the applicant’s claims, being harm from lack of access to mental health treatment and harm due to his political opinion, are required to be assessed against the complementary protection criterion as follows.
Mental health treatment claim
364. It is the intentional infliction of mental harm by others that would engage the operation of s 36(2)(aa) of the Act, per GLD18 v MHA.[54]
[54] [2020] FCAFC 2 at [90].
365. Lack of access to medical treatment in Australia as a consequence of removal does not amount to arbitrary deprivation of life under s 36(2A)(a) of the Act, per SZDCD v MIBP.[55]
[55] [2019] FCA 326 at [48].
366. The Tribunal accepts that the applicant is suffering from complex PTSD and has an eye injury. However, country information does not state that the applicant will be denied access to mental health treatment or other medical treatment. The Tribunal has examined the mental health claim and also considered the applicant’s eye injury.
367. There was no evidence or assertion before the Tribunal that a person, organisation or state authority whether by acts or omissions was causing or would cause or inflicting or would inflict upon the applicant mental harm or engaging in other acts of persecution which might cause the applicant to suffer mental harm as a result thereof by not permitting the applicant to access mental health treatment in India. There is also no evidence that the applicant would be denied access to medical treatment for his eye injury.
368. The lack of access to mental health treatment and medical treatment would be faced by the population of India generally and is not faced by the applicant personally per s 36(2B)(c) of the Act and therefore does not amount to real risk of significant harm.
369. The Tribunal is not satisfied the lack of access to mental health treatment claimed by the applicant is significant harm that meets the criteria in s 36(2A) of the Act.
370. The Tribunal is not satisfied the lack of access to medical treatment is significant harm that meets the criteria in s 36(2A) of the Act.
371. The Tribunal is not satisfied on the evidence that there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to India due to lack of access to mental health treatment and medical treatment.
Political opinion claim
372. The Tribunal accepts that the applicant in believing in the Khalistan movement as a non-active low-level supporter and member of SAD would suffer some minor discrimination in India.
373. The Tribunal does not however accept that the applicant’s low-level membership of SAD and his belief in the Khalistan movement would result in him being caused significant harm by state or non-state actors. He has a very minor role in SAD only as a paid-up member, does not have a political profile, and was not previously sought out by state or non-state actors, and entered and departed India in his 2014 and 2017 trips without hindrance.
374. The Tribunal does not accept that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed to India, there is a real risk that the applicant will suffer significant harm due to the applicant’s low-level political involvement with SAD or his belief in the Khalistan movement.
375. There was no evidence or information submitted by the applicant that would suggest that the applicant on his return to India would become politically active or prolific in the SAD and Khalistan movement so as to be placed in a situation of significant harm. The Tribunal does not accept this.
376. The Tribunal does not find the applicant’s claim of harm due to his political opinion amounts to significant harm that meets the criteria in s 36(2A) of the Act.
377. The Tribunal is not satisfied on the evidence that there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to India due to his political opinion.
378. The Tribunal has also considered whether the applicant’s mental health, political opinion and sexual offence conviction whether taken individually or cumulatively would amount to a real risk of him suffering significant harm but is unable to find as such. The applicant would suffer some discrimination such as from prospective employers who may not hire him, due to being required to disclose his sexual offence conviction on official documents, and from members of the community who might not wish to associate with him, but such discrimination would not result in a real risk that the applicant would suffer significant harm.
379. The Tribunal has also considered whether there is a real risk of the applicant being officially punished again in India for his Australian sexual offence conviction but is unable to find as such. There is no evidence or suggestion on the material before the Tribunal or by the applicant that he would be subject to a significant harm level of punishment that would offend the double-jeopardy doctrine on account of his sexual offence charges or conviction that were dealt with in Australia. DFAT country information also does not suggest that the applicant would face double jeopardy.[56]
380. The Tribunal has also considered the scenario of the applicant returning to India and deciding to actively join the militant acts of the Khalistan Commandos or actively engage in acts of political violence to further his ideological belief in the Khalistan movement. However, this would be a choice. Where there is a choice to act, then the conduct is not a ‘necessary’ consequence of removal from Australia. In EJC18 v MICMSMA, the court found that the Tribunal did not err in concluding that the applicants made the choice to pursue a property claim on their return to Pakistan.[57] The Tribunal does not accept this future choice by the applicant would give rise to complementary protection obligations.
381. The Tribunal is not satisfied that the applicant meets the complementary protection criterion in s 36(2)(aa) of the Act.
[56] DFAT Report – India – para 5.14.
[57] [2020] FCCA 3171 at [62]-[64].
CONCLUSION
382. 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).

384. There is no suggestion that the applicant satisfies s 36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s 36(2).
DECISION
385. The Tribunal affirms the decision not to grant the applicant a protection visa.
Donald Gordon
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.
…

at [88].

[2024] AATA 4061

19 July 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice