2400053 (Refugee)

[2024] AATA 3219

2400053 (Refugee) [2024] AATA 3219 (10 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2400053

COUNTRY OF REFERENCE:                   India

MEMBER:Siran Nyabally

DATE:10 April 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 10 April 2024 at 12:52pm

CATCHWORDS

REFUGEE – Protection Visa – India – religion – Sikh – political opinion – a supporter of the Khalistan movement – a land dispute he had with his paternal cousins – sexual assault/imputed homosexuality – mental health – does not accept that the applicant is an advocate, member or supporter of the SAD party – not satisfied that he or his family were the subject of adverse attention or treatment by the police and/or Indian authorities – not satisfied the applicant has a real chance of suffering serious or significant harm – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 499

Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Subclass 866 Protection (Class XA) visa (protection visa) under s 65 of the Migration Act 1958 (Cth) (the Act).

   APPLICATION FOR REVIEW

2. The applicant first arrived in Australia on [date] September 2017 as a dependant on his wife ([Ms A])’s Subclass 500 Student visa. He departed Australia on [date] June 2018, returning on [date] July 2018. The applicant has not subsequently departed Australia.

3. On 7 May 2019, the applicant was granted a further Student visa as [Ms A]’s secondary applicant. On 4 February 2021 he was granted a Subclass 485 Post-study work visa as a secondary applicant. The applicant’s Subclass 485 visa ceased on 4 February 2023. The applicant remained in Australia as an unlawful non-citizen.

4. On 6 September 2023 the applicant was granted a Bridging visa E, which ceased on 30 September 2023. The applicant remained in Australia as an unlawful non-citizen.

5. On 23 October 2023 the applicant was detained pursuant to s 189(1) of the Act. He remains in immigration detention.

6. On 30 November 2023 the applicant applied for the protection visa. The delegate refused the protection visa application on 21 December 2023.

7. The applicant applied for review of the delegate’s decision on 2 January 2024.

8. The applicant appeared before the Tribunal on 6 March 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

   CLAIMS AND EVIDENCE

   Before the Department

   Protection visa application

9. The applicant claims to be a [age]-year-old Indian citizen who was born in [Village 1] village in [Punjab]. In his protection visa application form, the applicant claimed that he left India because he was a supporter of the Khalistan movement and their leader Amritpal Singh, as well as the Shiromani Akali Dal (SAD) party (a pro-Khalistan party) and their leader Simranjit Singh Mann. The applicant claimed that his family had experienced ‘lots of bad incidents’ with the Indian police. He had ‘lost many relatives to the Khalistan movement in the past’, and had personally faced lots of discrimination and unfairness from the police and anti-Sikh organisations.

10. The applicant claimed to have left India to save his life because he was on the radar of ‘many Hindu groups, BJP or RSS’, who he believed wanted to spread Hinduism in India and who were getting paid by the government to find and hurt those Sikhs who work for Sikh religious organisations that support Khalistan movements. The applicant claimed that anyone who tried to raise their voice against the majority would be killed or imprisoned for no reason under the National Security Act and the Unlawful Activities (Prevention) Act. The applicant feared that if he returned to India, the Hindu organisations would hunt him down and kill him because he would keep ‘working for the Sikh religion’. He could not relocate within India as Sikhs were being targeted all over the country and the culprits had the law and the police working under them.

    Supporting documents

11. In addition to his online application, the applicant lodged the following documents with the Department:

    ·copies of the biodata page of his passport, Indian national identity card and Victorian driver’s licence;

    ·a copy of his senior secondary school certificate; and

    ·copies of travel itineraries for the applicant’s flights from Amritsar to Australia in September 2017, and from Delhi to Amritsar in June 2018.

12. On 6 December 2023, the Department wrote to the applicant to request additional information about his claims for protection. In response, the applicant submitted:

    ·a news article titled ‘78 of “Waris Punjab De” arrested in crackdown, Amritpal on the run’, detailing a heavy deployment of forces by Punjab police and their efforts to locate and arrest Amritpal Singh and his pro-Khalistani group Waris Punjab De;

    ·a news article titled ‘Amritpal’s uncle arrested: NSA slapped on him, 4 accomplices’, documenting the arrest and charging of 5 associates of Amritpal Singh under the National Security Act 1980; and

    ·a news article titled ‘Net ban inconveniences people’, describing the effects of a government suspension on mobile internet services.

    Protection visa application interview

13. The Department did not invite the applicant to attend an interview.

    Delegate’s decision

14. The delegate did not accept the applicant’s claims to be a supporter of the Khalistan movement, that he was of interest to Indian authorities or that he would be an active and vocal supporter of the Khalistan movement if he were to return to India. The delegate accepted that the applicant was a low-level supporter of the SAD and that as a Sikh he may be imputed as being a supporter of the Khalistan movement, but was not satisfied that there was a real chance or risk that he would be harmed as a result.

    Before the Tribunal

15. On 2 January 2024 the applicant applied for review of the delegate’s decision and provided the Tribunal with the delegate’s notification letter and decision record.

    Pre-hearing submissions

16. Shortly before the hearing, the Tribunal received the following documents from the applicant:

    ·two emails from the applicant’s wife, [Ms A], stating that she is willing to financially support the applicant with his daily expenses while he obtains an Indian passport and departs Australia;

    ·a copy of [Ms A]’s bank statement and payslips; and

    ·extracts of the applicant’s medical records from International Health and Medical Services (IHMS) for the period between 24 October 2023 and 7 February 2024.

    The hearing

17. As noted above, the applicant appeared before the Tribunal on 6 March 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

18. Where relevant, the applicant’s oral evidence is discussed in the Tribunal’s findings and reasons below.

    Post-hearing submissions and evidence

19. At the conclusion of the hearing, the Tribunal granted the applicant 2 weeks (to 20 March 2024) to provide any further documents or information he wished the Tribunal to consider.

20. On 3 and 9 April 2024 the Tribunal received the following documents from the applicant:

    ·the applicant’s mother’s and father’s death certificates with certified translations;

    ·a signed, notarised letter from [Mr B] (with certified translation), stating that the applicant had a land dispute with his uncle, that his mother was harassed by his uncle and died due to the harassment, and that the applicant’s life is in great danger; and

    ·a letter from the applicant’s wife dated 28 March 2024, requesting that he be permitted to remain in Australia so that they can start their lives together and outlining the stress his potential removal has caused them both.

21. The applicant has also provided the following news articles and videos:

    ·‘Farmer leader Rakesh Tikait attacked in Rajasthan’ (2 April 2021) – concerning an attack on a leader of the Sikh farmer protest in Alwar, Rajasthan.

    ·‘Killing of Sikhs clouds Clinton visit to India’ (22 March 2000) – concerning the massacre of 40 Sikhs in Kashmir in 2000.

    ·‘3 bomb attacks in 1 week at Punjab’s Golden Temple: Who’s behind the violence?’ (11 May 2023) – concerning 3 attacks on the Golden Temple in Amritsar, Punjab in May 2023.

    ·‘Rajasthan traffic constable pulls down Sikh man’s turban, triggers outrage’ (18 January 2019) – concerning an altercation between a police constable and a Sikh rickshaw puller in Bharatpur, Rajasthan, instigated by the rickshaw puller obstructing traffic.

    ·‘Youth Murdered in Offensive Firing by State Forces at Khanauri Barrier: Eyewitnesses’ (21 February 2024) – concerning the murder of a 21-year-old Sikh participating in Sikh farmer protests in Khanauri, Punjab.

    ·‘Strict punishment should be given to culprits who assaulted Sikh girl in Rajasthan: SGPC President’ (19 April 2022) – concerning the sexual assault of specially-abled minor Sikh girl in Alwar, Rajasthan.

    ·‘Sikh men abused and thrashed by mob in Rajasthan, video goes viral’ (27 May 2017) – concerning the assault of a Sikh man by a mob on 24 April 2017 in Ajmer, Rajasthan.

    ·‘Jaipur Police attacks Sikh Gurdwara; Sikhs lathicharged, arrested’ (18 March 2016) – concerning a police attack on local Sikhs and their Gurdwara in Jaipur, Rajasthan following a dispute over roadworks.

    ·‘Haryana CM Hooda shown black flags at Kaithal rally; Police arrests several persons’ (6 July 2014) – concerning the arrest of protestors at a rally announcing the formation of a committee for management of Sikh Gurdwaras in Haryana.

    ·‘Sikh museum to be constructed in Lakhnaur Sahib Village in Ambala’ (6 July 2015) – concerning the construction of a museum of Sikh heritage in Lakhnaur Village, Haryana.

    ·‘Hindus Attack Gurdwara Sahib in Kaithal; One Sikh Killed, Several Injured’ (24 March 2019) – concerning the attack by a Hindu group on a Sikh group in Kaithal, Haryana following a land dispute between the two groups.

    ·‘Beadbi Of Guru Granth Sahib Ji And Sikh Response: Lecture On 8^th January At Yamuna Nagar’ (6 January 2017) – the announcement of a lecture to be given about Beadbi (or disrespect) of the Sikh holy scripts.

    ·‘Sikh Candidate Forced to Remove Kirpan & Kara in Haryana’ (20 November 2016) – concerning a Sikh attending a clerical exam in Haryana, who was instructed to remove two of his articles of faith.

    ·‘Attack on Sikh in Karnataka for Wearing Kirpan: Full Copy of FIR with Punjabi Translation’ (29 May 2018) – concerning an attack on a Sikh man by Hindu residents of Kodla village, Karnataka.

    ·‘Uttarakhand Police Forcefully Removing Sikh Flags from Vehicles of Sikh Yatris going to Hemkunt Sahib’ (18 June 2018) – concerning the removal of symbolic Sikh flags from the vehicles of Sikh travellers in Uttarakhand.

    ·‘Meghalaya Government Adamant of Displacing Shillong Sikhs; UDP Leader Says Don’t Fight [Losing] Battle’ (29 June 2018) – concerning a land dispute between Sikhs and the local government in Shillong, Meghalaya.

    ·‘Sack and Arrest Punjab DGP Dinkar Gupta For Hate Speech Against Sikhs: Bir Devinder Singh’ (22 February 2020) – an editorial concerning accusations of anti-Sikh rhetoric by (now former) Punjab Director General of Police Dinkar Gupta.

    ·‘Attacks on Sikhs in India: SGPC Writes to Indian Home Minister, CMs of Punjab, Haryana & Rajasthan’ (20 August 2018) – documenting concerns raised by the Shiromani Gurdwara Prabhandak Committee about violence against Sikh families in Punjab, Haryana and Rajasthan.

    ·A twitter (or X) post by ‘MJ’ (29 December 2022) about the molestation of a Sikh girl by Islamists in Jaipur.

    ·‘Uttar Pradesh: Missionary school directs Sikh students not to wear turban and kirpan to school, takes back order and apologises after parents and SGPC protest’ (23 July 2022) – concerning a protest against a missionary school in Bareilly, Uttar Pradesh, for requiring Sikh students not to wear turban and kirpan. The article states that the missionary school subsequently retracted the order and apologised.

    ·‘Hate crime in Rajasthan: Tensions prevail in Alwar as a group of Muslim youths thrash a Sikh man, chop off his hair’ (22 July 2022) – concerning an attack on a Sikh man in Alwar, Rajasthan by a Muslim group.

    ·‘4 Sikhs Beaten Up In Rajasthan Village, Probe Ordered As Video Goes Viral’ (26 May 2017) – an additional account of the 24 April 2017 attack in Ajmer, Rajasthan.

    ·‘Another day, another minority killed in the name of religion in Haryana’ (25 March 2019) – an additional account of the March 2019 land dispute in Kaithal, Haryana.

    ·‘Gurugram: Sikh neighbours rescue women, kids holed up inside mosque under attack’ (1 August 2023) – concerning attacks on Muslims in Haryana, including 1 incident in which the Muslim victims were assisted by Sikh community members.

    ·‘Haryana move attack on Sikh panth: Akal Takht’ (25 July 2014) – an additional account of the 2014 opposition to the establishment of a committee for management of Sikh Gurdwaras in Haryana.

    ·A screenshot of a video posted on Facebook in 2019 titled ‘Haryana Sikh Gurudwara sahib Attacked Eyewitness said, Mob pelted stone on Gurudwara sahib’. A link to the video was not provided.

    ·‘HP CM Thakur won’t be allowed to hoist Tricolour, threaten US-based Sikhs for Justice’ – an undated article concerning a US-based pro-Khalistan group advocating for a referendum in Punjab.

    ·‘India: Government Policies, Actions Target Minorities Year After Delhi Violence, Bias Against Muslims Taints Investigation’ (19 February 2021) – a Human Rights Watch article about violence against Muslims and government critics by Indian authorities.

    ·‘Jasveer Singh: Rishi Sunak Becoming UK PM Would Be A Dangerous Outcome For Sikhs’ (12 July 2022) – concerning fears of anti-Sikh sentiment held by (now Prime Minister) Rishi Sunak.

    ·‘Mansi Kaur: Former Members Disclose How The BJP IT Cell Is Targeting The Farmers Protest’ (8 February 2021) – concerning allegations that the BJP are utilising the internet to influence the narrative of politically sensitive topics.

    ·A screenshot of a 2021 YouTube video titled ‘Mob attacked Sikh family in Haryana for using Guru Nanak Patshah’s Shabad’. A link to the video was not provided.

    ·‘Punjab tourists clash with locals in HP’s Manikaran, over 20 injured’ (7 March 2023) – concerning allegations of clashes between Sikh travellers and local residents in Kullu district, Himachal Pradesh.

    ·A Reddit excerpt of an article titled ‘Haryana: Sikh youth beaten up for not raising slogans of “Khalistan Murdabad”’ (18 November 2023) – concerning an attack on a Sikh man in Panipat, Haryana.

    ·‘SFJ warns of Mohali like attack if HP takes action for affixing of Khalistan flags, graffiti’ (11 May 2022) – concerning threats from a US-based pro-Khalistan group towards the Himachal Pradesh Chief Minister Jai Ram Thakur.

    ·A screenshot of a 2018 YouTube video titled ‘Sikh Family Brutally Attacked in Haryana’. A link to the video was not provided.

    ·‘Sikh Family Brutally Attacked in Haryana; Told to Leave the State; Police Accused of Inaction’ (18 August 2018) – concerning an attack on a Sikh family in Hisar, Haryana.

    ·‘Sikh pilgrims attacked by Hindu group in Himachal Pradesh’ (15 March 2023) – an additional account of the March 2023 clashes between Sikh travellers and local residents in Himachal Pradesh.

    ·‘There’s No Free Speech Or Free Movement For Sikhs & Punjabis In India’ (26 February 2024) – an editorial from a Canada-based Sikh, raising allegations of censorship of the Punjabi and Sikh community following the arrest of Amritpal Singh and the Farmer’s Protest.

    ·A screenshot of a 2009 video titled ‘Violence in Punjab, Haryana after Sikh priest's death’. A link to the video was not provided.

    ·‘Viral Video: Punjabi tourists creates ruckus at Gurdwara Sahib Manikaran in HP’ (6 March 2023) – an additional account of the March 2023 clashes between Sikh travellers and local residents in Himachal Pradesh.

22. On 21 March 2024, the Tribunal issued a summons to the Department. A response was received on 26 March 2024.

    CRITERIA FOR A PROTECTION VISA

23. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

24. 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.

25. 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).

26. 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.

27. 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.

28. Under s 36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm. The Tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country.[1]

    [1] SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.

    The applicant’s fear of harm

1. Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.

   Mandatory considerations

2. 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

3. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds. The applicant does not claim to be a member of the same family unit of a person in respect of whom Australia has protection obligations.

4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Country of nationality

5. The applicant has provided a copy of his Indian passport. He has consistently claimed to be from India. The Tribunal is satisfied that the applicant is a citizen of India.

6. For the reasons that follow, the Tribunal considers it unnecessary to consider s 36(3) as it is not satisfied that the applicant has a well-founded fear of persecution in India or that there is a real risk that he will suffer significant harm if he returns to India.

   The applicant’s personal background

7. The applicant gave evidence that he was born and raised in [Village 1], a small town of about [number] people. Both his parents are deceased – his father passed away when the applicant was [age], and his mother passed away from a heart attack in June 2018. The applicant has two sisters in India, but has no contact with them as they have fallen out over a land dispute (discussed further below).

8. After finishing senior secondary school in [year], the applicant worked in various odd jobs in agriculture and dairy farming.

9. The applicant married his wife [in] December 2016. The applicant’s marriage was arranged by a person in his village. His wife and her family lived in a village about 9–10 kilometres from [Village 1].

10. The applicant’s wife travelled to Australia first, and the applicant followed in September 2017.

11. The applicant has returned to India once, in 2018, to attend his mother’s funeral.

12. The applicant was charged with several criminal offences in 2023, being [deleted]. His criminal matter remains pending in the [Court].

13. The Tribunal accepts the above matters to be true.

    The applicant’s claims for protection

    Sikh religion

14. At the hearing, the Tribunal asked the applicant about his written claims to fear harm on the basis of being a Sikh. The applicant stated that the Indian Prime Minister Narendra Modi and his Bharatiya Janata Party (BJP) and groups like the Rashtriya Swayamsevak Sangh (RSS) were cruel to Sikhs. The applicant claimed that these groups were always disrespecting Sikhs because of their religion.

    Political activism

15. The Tribunal asked the applicant about his written claims to fear harm on the basis of his support for the SAD party and the Khalistan movement and the supporting articles he had provided the Department. The applicant told the Tribunal that there were recent incidents where pro-Khalistani Sikhs were targeted by the Indian authorities. He referred to Amritpal Singh who was jailed in an ‘NSA jail in Assam’ despite having no criminal record whatsoever, and Hardeep Singh Najjar, a Sikh separatist who was shot and killed in Canada in 2023, an incident for which the Indian government was blamed.

16. The Tribunal asked the applicant about his relationship to these high-profile political figures. In response, the applicant referred to a man named Basant Singh, who was one of 8 people who were jailed with Amritpal Singh. The applicant claimed that Basant Singh [was] his very good friend, was jailed in ‘the Assam NSA jail’ and falsely accused of involvement in terrorist activities and bringing funds from Pakistan.

17. The Tribunal asked the applicant if he had any evidence of his relationship with Basant Singh. The applicant replied that he had read about Basant Singh’s case on the internet, but that he had ‘solid proof’ which he would provide to the Tribunal after the hearing. As at the time of this decision, the applicant has not provided the Tribunal with any documents or evidence concerning Basant Singh or requested additional time to provide this information.

18. The Tribunal told the applicant that the DFAT report stated that ordinary residents of Punjab perceive the Khalistan movement as something that is discussed in the diaspora abroad more than in Punjab, and that sources advised DFAT that the presence of an active, influential Khalistan movement in Punjab was not a feature of their day-to-day life.[2] In response, the applicant stated that he would ‘definitely support his religion’ if he returned to India. The Tribunal also observed that unlike the applicant, Amritpal Singh was a high-profile proponent of the Khalistan movement. The applicant responded by referring again to the case of Hardeep Singh Najjar. The Tribunal noted that Hardeep Singh Najjar, like Amritpal Singh, was also a high-profile supporter of the Khalistan movement. The applicant reiterated that he would definitely support his religion if he returned to India and commented that ‘maybe I will also be part of the high-profile category’.

    Land dispute

    [2] DFAT, Country Information Report: India (29 September 2023) (DFAT report) at [3.95].

19. The applicant raised a new claim at the hearing, stating that he feared harm on the basis of a land dispute he had with his paternal cousins. The applicant explained that his mother had had a land dispute with the applicant’s uncle, [and] his sons [Mr C] and [Mr D]. His mother’s agricultural land had had an irrigation canal which was destroyed by his uncle and cousins. The applicant’s mother started a court case to enable the canal to be rebuilt, which she won. The applicant claimed that his cousins started ‘torturing’ his mother after she won the case. His cousins would go to her place in the middle of the night, throw rocks and yell curse words at her. The applicant’s mother died of a heart attack shortly after.

20. The applicant told the Tribunal that after his mother’s death his sisters had sided with his cousins, which was the reason why they no longer spoke.

21. The Tribunal asked the applicant why he feared harm from a land dispute between his mother and her relatives. The applicant was initially reluctant to answer, telling the Tribunal that it related to an incident he was ashamed of which had affected his married life. The Tribunal encouraged the applicant to discuss the information if he believed it was relevant to his claims to fear harm in India. After some hesitation, the applicant revealed for the first time that when he was in [a grade], he had been abducted and sexually abused by his cousins [Mr C] and [Mr D]. His cousins had abused him with the intention to ruin his and his mother’s reputation in the village. The incident led people in the village to believe that the applicant was a homosexual, or ‘gay’. The applicant did not tell the police about this incident as his mother had told him not to talk back or to defend himself, explaining that his father was dead so there was no-one to protect them.

22. The applicant feared that if he returned to the village, his uncle and cousins would bribe the local authorities to put him in jail. He claimed that people in India are using the police to sort things out with their enemies. The applicant claimed that his cousin [Mr D] was now the head of the village, and the whole village was under his control. The Tribunal asked the applicant whether he had been threatened by his uncle or cousins. The applicant acknowledged that he had not but claimed that a friend in the village ([Mr E]) had told him that his uncle and cousins were saying that the applicant ‘could not do anything against them’ as they are in control of the village. The applicant knew that they had alliances within the village and therefore had manpower against him.

23. The Tribunal asked the applicant whether he had any evidence of the land dispute with his uncle and cousins and/or their threats, such as court documents or a written statement from his friend [Mr E]. The applicant said he was in the process of compiling those documents, which he had requested from [Mr E]. The applicant said that [Mr E] had assured him that he will get them.

24. As noted above, the Tribunal granted the applicant time after the hearing to provide any further documents or information he wished the Tribunal to consider. The applicant’s post-hearing submissions and evidence received on 3 and 9 April 2024 contained no information associated with the land dispute other than the statement of [Mr B]. This statement refers to a land dispute, but provides no information about the current status of the dispute and no supporting evidence or explanation for the author’s conclusions that the applicant’s mother died because of his uncle’s harassment and that the applicant’s life is in danger. 

    Drug use in Australia, mental health

25. At the hearing, the Tribunal asked the applicant about the criminal offences he had disclosed in his protection visa application. The applicant stated that these charges related to his drug use. The Tribunal asked the applicant what had motivated him to start using drugs. The applicant said that there were two reasons. The first was his mother’s passing, which had affected his mental health. The second reason was because his wife had learned about the sexual abuse he had suffered when he was a child. During an argument, in the heat of the moment, his wife said in anger ‘look at yourself, you are gay’. The applicant said that this ‘broke’ him, especially because the comment came from his wife. After that he got into the company of the wrong people, which got him into drugs. Before this, he had never touched drugs.

26. The Tribunal asked the applicant whether he thought he would try to use drugs if he returned to India. The applicant said that he would not. He had made a mistake and is now in a detention centre. He has learned his lesson and has resolved not to use drugs again. He did not want to spoil his life by living in addiction.

27. The applicant has not claimed to fear harm on the basis of his past drug use and/or the associated criminal proceedings. He told the Tribunal that he had not touched drugs before the argument with his wife and has resolved not to use drugs again.

28. The Tribunal has also considered the relevance of the applicant’s mental health to his claims to fear harm in India. The Tribunal notes that at the hearing, it encouraged the applicant to speak to a counsellor or health professional at the immigration detention centre about the matters discussed at the hearing and noted that it would have regard to this information when considering his claims. To date, no medical evidence has been received from the applicant. Without corroborating medical evidence, the Tribunal cannot accept that the applicant’s mental health contributed to his drug use and/or gives rise to a real chance or risk of harm on return to India.

29. Accordingly, the Tribunal is satisfied that there is no real chance or risk of harm to the applicant arising from his mental health, his previous drug use and/or his criminal matters, now or in the reasonably foreseeable future.

    Relocation

30. The Tribunal told the applicant that even if it were to accept that he was at risk of harm in his home village, it would also need to consider whether there were other parts of India where he did not face a real chance of harm. The Tribunal discussed with the applicant country information which indicated that Sikhs live all over India and that there are significant populations of Sikhs in states such as Haryana, Delhi, Rajasthan, Uttar Pradesh and Uttarakhand.[3] The Tribunal observed that the applicant had been able to move to Australia and successfully re-establish himself here for a number of years, and asked him if there was any reason why he could not relocate to one of these other states to avoid the harm he feared in [Village 1].

    [3] DFAT report at [3.60].

31. The applicant responded that the Sikh community were treated poorly throughout India and get attacked in many different places. He stated that many Sikh people were killed in New Delhi as part of Indira Ghandi’s Operation Bluestar, and that these kinds of things continue to happen. The applicant also referred to the recent example of the Sikh farmers protesting in Delhi. The applicant stated that those farmers were peacefully protesting, but yet 60–80 people were injured and one person was shot in the head and died. The applicant claimed that this was an example of how the Sikh community was treated.

32. Towards the end of the hearing, the Tribunal told the applicant that its focus was primarily on the question of whether it would be reasonable for him to relocate to an area of India where he did not fear harm. The Tribunal told the applicant that it would allow him time to provide any evidence that is relevant to the question of his relocation to another city in India with a substantial Sikh population, by reference to the states mentioned in the DFAT report and discussed with the applicant at the hearing. As noted above, the Tribunal also encouraged the applicant to speak to a counsellor or health professional at the immigration detention centre about the matters discussed at the hearing, and noted that it would have regard to this information when considering his claims.

33. The applicant’s post-hearing submissions and evidence did not include any updated medical records or information, nor any explanation about why this material had not been provided. The sole record received in response to the Tribunal’s summons for the applicant’s IHMS records for the period from 1 March 2024 to present concerned an appointment for a Buvidal injection on 6 March 2024. Neither the medical records received from the applicant before the hearing nor the IHMS records summonsed from the Department contain any reference to the applicant discussing his mental health with a counsellor, psychologist, psychiatrist or other health professional.

    FINDINGS

    New claims

34. As noted above, the applicant advanced new claims at the hearing. Section 423A of the Act requires the Tribunal to draw an inference unfavourable to the credibility of claims or evidence not raised or presented before the primary decision was made, unless the Tribunal is satisfied there is a reasonable explanation as to why that occurred.

35. The Tribunal accepts that there is a reasonable explanation for the applicant’s failure to adduce evidence of the land dispute in his written claims, namely that those claims were intertwined with the sexual assault that he was reluctant to discuss. The Tribunal does not draw any unfavourable inferences from the credibility of the applicant’s new claims.

    Is the applicant a refugee?

    Sikh religion

36. The applicant has provided no corroborative evidence or specific examples of the ‘discrimination and unfairness by the police and other anti-Sikh organisations’ he has claimed to have personally experienced.

37. In considering the applicant’s claims to fear harm on the basis of being a Sikh, the Tribunal has had regard to the country information he has submitted. In doing so:

    ·     the Tribunal notes that a number of the articles the applicant provided concern events occurring between 2000 and 2014. Given the time that has elapsed since those events occurred, the Tribunal does not accept that these articles are illustrative of current harm experienced by Sikhs in India.

    ·     the Tribunal also notes that several articles refer to events which appear to be irrelevant to the applicant’s claims of discrimination and violence against the Sikh community, such as the accounts of attacks on the Muslim population in India, the construction of a museum of Sikh heritage or the announcement of a lecture in Yamuna Nagar.

    ·     the Tribunal places no weight on the commentary and editorials from members of the Sikh diaspora living outside of India. In the absence of any information to contextualise the opinions contained in the articles, the Tribunal does not accept this material to be reflective of the experiences of the Sikh community within India.

    ·     the Tribunal does not accept that the articles concerning the discrimination and/or violence experienced by the leaders of and participants in the farmer protests support the applicant’s claims to fear harm because he is a Sikh. Rather, they indicate that Sikh farmers were targeted because they were politically active farmers, not because they were Sikhs. The applicant has not claimed to be a politically active farmer (his claim to be politically active is considered further below).

38. The Tribunal does not accept that the remaining country information demonstrates that there is a real chance of harm to the applicant because he is a Sikh. The information in these articles and videos is consistent with DFAT’s assessment that Sikhs in India generally face a low level of official and societal discrimination and violence.[4] However, as discussed with the applicant at the hearing, the DFAT report also observes that Sikhism is the dominant religion in Punjab, there are very senior Sikhs in politics and Sikhs are well represented in the armed forces.[5] The Tribunal does not accept that the incidents documented in the country information are illustrative of systematic and discriminatory conduct against Sikhs in India, nor does it accept on the basis of the country information there is a real chance of serious harm to the applicant as a Sikh: s 5J(4)(b)–(b).

    [4] DFAT report at [3.63].

    [5] DFAT report at [3.61].

39. The Tribunal accepts that the applicant is a Sikh. However, the applicant’s lack of corroborative evidence or specific examples of the harm he claims to have personally experienced as a Sikh, coupled with the Tribunal’s assessment of the country information discussed above, lead the Tribunal to not accept that there is a real chance of serious harm to the applicant on the basis of his Sikh religion, now or in the reasonably foreseeable future.

    Political activism

40. The applicant has claimed to fear harm on the basis of his support for the SAD party and the Khalistan movement, including that he and his family had experienced ‘lots of bad incidents’ with the Indian police in the past. The Tribunal accepts that Sikhs actively advocating for the Khalistan movement (including members of or advocates for the SAD party) may attract the adverse attention of Indian authorities. A number of people have been charged or convicted of offences under the Unlawful Activities Prevention Act 2019 (UAPA) for promoting the Khalistan movement.[6] Sikhs who advocate for an independent Khalistan, including by attending demonstrations, meetings or posting on social media, may be subject to attention and monitoring by authorities, as well as criminal charges.[7] The Tribunal also accepts on the basis of corroborative news articles[8] that a Basant Singh [was] arrested in connection with Amritpal Singh and the Khalistan movement.

    [6] ‘Religious Minorities In India Report’, Council on Minority Rights in India (1 November 2022), p.181,

    [7] ‘IND201037.E India: Situation and treatment of suspected or perceived Sikh militants and Khalistan

    [8] Divya Goyal, ‘Among Amritpal’s aides detained under NSA: A social media influencer, furniture store owner’, The Indian Express (21 March 2023), available at Manjeet Sehgal, All about Amritpal Singh’s henchmen booked under NSA, flown to Dibrugarh, India Today (12 April 2023), available at

1. However, the Tribunal does not accept that the applicant is an advocate, member or supporter of the SAD party and/or the Khalistan movement, or that he or his family were the subject of adverse attention or treatment by the police and/or Indian authorities. The applicant has provided no evidence to corroborate his written claims that his family had experienced ‘lots of bad incidents’ with the police, that he had ‘lost many relatives to the Khalistan movement’ in the past and/or that he had ‘personally faced lots of discrimination and unfairness by the police and other anti-Sikh organisations’. The applicant told the Tribunal that if he returned to India he would ‘definitely support my religion’, but did not claim that he proposed to actively advocate for the SAD party and/or the Khalistan movement.

2. In the absence of any corroborating evidence, the Tribunal does not accept that the applicant is a personal friend of Basant Singh or that the Indian authorities would impute him as being associated with Basant Singh. The Tribunal notes that the applicant was provided with an opportunity to provide evidence about Basant Singh after the hearing but that nothing has been received from him.

3. In the absence of any evidence of past political activism by the applicant and/or his family and of his relationship (if any) to Basant Singh, the Tribunal does not accept that the applicant will actively advocate for the SAD party or the Khalistan movement in the future and/or that he will be imputed as an advocate of either movement, or that he or his family were the subject of adverse attention or treatment by the police and/or Indian authorities. Accordingly, the Tribunal is not satisfied that there is a real chance that the applicant will face serious harm on the basis of his actual or imputed support of the SAD party and/or the Khalistan movement and its proponents.

   Separation from wife

4. The Tribunal has also considered the applicant’s relationship with his wife and the potential impact of his return to India, and in particular his wife’s 28 March 2024 letter outlining the stress his potential removal has caused them both.

5. The Tribunal accepts that the applicant’s separation from his wife is a distressing prospect. However, it does not accept that their separation is for the essential and significant reasons of his race, religion, nationality, membership of a particular social group or political opinion. Therefore, the Tribunal does not accept that he has a well-founded fear of persecution as a result of his separation from his wife.

   Land dispute

6. As noted above, the Tribunal does not draw an adverse inference from the applicant’s failure to mention his mother’s land dispute with his uncle and cousins in his protection visa application. The applicant has provided the Tribunal with quite specific oral evidence about the cause of the dispute, being the destruction of his mother’s irrigation canal, the sexual abuse he suffered, and the harassment of his mother as a result of the dispute. In contrast, the applicant’s evidence about the legal status and consequences of the dispute was unclear. He was unable to provide specific information about his mother’s court proceedings, the outcome or why he would be affected by the outcome of a case brought by his mother.

7. The Tribunal is prepared to accept that the applicant’s mother had a land dispute with his uncle and cousins and that she was harassed by them as a consequence. The applicant’s description of the harassment experienced by his mother is consistent with country information, which indicates that widows in India frequently experience tensions with their families for economic reasons, and that in-laws may deny or dispossess widows of property after the death of their spouse.[9]

   [9] ‘In their fight for land rights, Gujarat’s women face long battles’, Aarefa Johari, Scroll.in (3 September 2021), 20210903144849; ‘India’s invisible widows, divorcees and single women’, BBC News (7 March 2014), CX322162; ‘Widows of suicide farmers to get land titles in Indian state’, Chandran, R, Thomson Reuters Foundation (21 June 2019), 20190626112917; ‘Report of the Special Rapporteur on violence against women, its causes and consequences, Rashida Manjoo: Addendum: Mission to India’, A/HRC/26/38/Add.1, UN Human Rights Council (1 April 2014), p.7, CIS28582.

8. The Tribunal accepts the applicant’s account of his sexual abuse in its entirety. The applicant was clearly affected when telling the Tribunal about this incident, informing the Tribunal that he had never discussed it before. The Tribunal also accepts that the abuse was motivated by his cousins’ desire to threaten the applicant’s mother in association with the land dispute.

9. However, in the absence of any corroborating evidence, the Tribunal does not accept that the applicant’s cousin [Mr D] is now the head of the village; that the applicant’s mother’s land dispute with his uncle and cousins is continuing; and/or that the applicant’s uncle and/or cousins would wish to harm him as a result of the dispute. The Tribunal places no weight on the statement from [Mr B], as it provides no information about the current status of the land dispute and no supporting evidence or explanation for his conclusions that the applicant’s mother died because of his uncle’s harassment and that the applicant’s life is in danger. 

   Sexual assault/imputed homosexuality

10. As the Tribunal has accepted the applicant’s account of his sexual abuse, it also accepts that people in the village considered the applicant to be a gay, and that members of the village may have discussed this perception with the applicant’s wife which caused a strain in their relationship. The Tribunal also accepts that if the applicant were required to return to his home village, he would be forced to confront his abusers and may again be imputed as ‘gay’ by people in the village.

11. Country information indicates that gay people lack protection and face intolerance, abuse and violence in their daily lives. In particular, DFAT reports that men who are victims of sexual assault are sometimes subjected to extortion, including by police, through threats of legal action under a (now repealed) section of the Indian Penal Code 1860 which criminalised sexual acts ‘against the order of nature’.[10]

    [10] DFAT report at [3.50]–[3.51].

12. Accordingly, on balance, the Tribunal considers that there is a real chance of persecution to the applicant in his home village on the ground that he is a member of a particular social group, being a man perceived to be gay. The Tribunal, having regard to the country information which indicates that police may also attempt to extort male victims of sexual assault, accepts that the Indian authorities cannot provide protection against persecution to the applicant in [Village 1]. However, the Tribunal must also consider whether this well-founded fear applies to all areas of India.

    Relocation

13. The Tribunal asked the applicant whether he thought that he would be harmed if he relocated to another part of India, such as a large city with a significant Sikh population in a state such as Haryana, Delhi, Rajasthan, Uttar Pradesh and Uttarakhand. In response, the applicant suggested that his enemies would use police to ‘sort things out’ by accusing him of being a gangster, and that he would suffer discrimination as Sikhs were treated badly throughout India.

14. The Tribunal has not accepted that the applicant’s mother’s land dispute with his uncle and cousins is continuing and/or that the applicant’s uncle and/or cousins would wish to harm him as a result of the dispute. As the Tribunal does not accept that the applicant remains of interest to his uncle and/or cousins, it does not accept that they would attempt to find and harm him (including by using police) should he relocate elsewhere in India.

15. There is no evidence before the Tribunal to suggest that people outside the applicant’s home village would become aware of his sexual assault and/or impute him as being a gay man.

16. The Tribunal has not accepted that there is a real chance that the applicant would be harmed because he is a Sikh, given the country information which indicates that Sikhs in India generally face a low level of official and societal discrimination and violence. The Tribunal also notes that there are significant Sikh populations residing in Haryana, Delhi, Rajasthan, Uttar Pradesh and Uttarakhand.[11]

    [11] DFAT report at [3.60], [3.63].

17. As such, the Tribunal does not accept that there is a real chance of persecution to the applicant should he relocate to a large urban centre in India outside of Punjab, such as Haryana, Delhi, Rajasthan, Uttar Pradesh and Uttarakhand. It follows that the Tribunal does not accept that the applicant’s fear of harm extends to all areas of India: s 5J(1)(c).

18. In summary, and having considered the applicant’s claims individually and cumulatively, the Tribunal does not accept that the applicant has a well-founded fear of persecution if removed from Australia to India. Therefore the applicant is not a refugee as defined in s 5H of the Act as he does not satisfy the criterion set out in s 36(2)(a).

    Is the applicant owed complementary protection?

19. 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). This requires the Tribunal to consider whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that the applicant will suffer significant harm.

    Sikh religion, political activism, mental health, drug use, land dispute

20. The Tribunal has found that the applicant does not face a real chance of serious harm as a result of his Sikh religion, his actual or imputed political activism, his mental health, his past drug use and/or his mother’s land dispute. It is noted that in Minister for Immigration and Citizenship v SZQRB,[12] the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[13] Accordingly, for the same reasons, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his removal to India, there is a real risk he will suffer significant harm on these bases.

    Separation from wife

    [12] [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) (SZQRB).

    [13] SZQRB per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [3].

21. In considering whether the applicant meets the complementary protection criterion under s 36(2)(aa) by reason of his relationship with his wife and the potential impact of his return to India on his marriage, the Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that he will suffer significant harm. ‘Significant harm’ is exclusively defined in s 36(2A) as follows:

    (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.

22. The Tribunal accepts that the applicant and his wife will both be adversely affected by his return to India. However, the applicant does not suggest that any harm he and his wife might suffer as a result of this separation would arise from the intentional or deliberate act or omission of a third person or persons such as could constitute arbitrary deprivation of life, cruel or inhuman treatment or punishment, degrading treatment or punishment or torture. Nor is it suggested that the death penalty will be carried out upon him.

23. For these reasons the Tribunal does not accept that the impact of the applicant’s separation from his wife would meet the definition of ‘significant harm’, as that term is exclusively defined in s 36(2A).

    Sexual assault/Implied homosexuality

24. The Tribunal has earlier found there is a real chance of serious harm to the applicant in his home village of [Village 1] on the basis of his past sexual assault and/or being imputed as a gay man. The Tribunal accepts that there is also a real risk of significant harm to the applicant in his home village.

25. Section 36(2B) of the Act qualifies the definition of ‘significant harm’ in s 36(2)(aa) by setting out three alternative circumstances in which there is taken not to be a real risk that a non-citizen will suffer significant harm in a country. The circumstances are:

    ·where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm;

    ·where the applicant 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

    ·the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.

26. At the hearing, the applicant claimed that he would be unable to relocate due to the discrimination experienced by Sikhs throughout India, citing examples such as Operation Bluestar and the recent protests held by Sikh farmers in Delhi. The Tribunal does not consider these examples to be relevant. Operation Bluestar took place 40 years ago and targeted pro-Khalistani Sikhs, and the protests in Delhi were held by politically active Sikh farmers, not Sikhs generally. The Tribunal does not accept that the applicant is or would be imputed as a politically active farmer and/or an advocate, member or supporter of the Khalistan movement, or that he or his family were the subject of adverse attention or treatment by the police and/or Indian authorities in the past.

27. Country information, as referenced earlier in these reasons, indicates that Sikhs in India generally face a low level of official and societal discrimination and violence,[14] and that there are significant Sikh populations residing in Haryana, Delhi, Rajasthan, Uttar Pradesh and Uttarakhand. The Tribunal does not accept that the applicant’s uncle, cousins or anyone from his home village would want to locate him in a large urban centre in one of those states.

    [14] DFAT report at [3.63].

28. In considering the reasonableness of relocation for the applicant, the Tribunal notes that the applicant is a young man with a history of work in India after graduation. Neither he nor his wife have claimed or suggested that she intends to accompany him back to India and/or that their marriage would preclude the applicant’s ability to relocate within India. Crucially, and as discussed at the hearing, the applicant has previously moved to Australia, demonstrating that he has some access to resources to relocate. He is also fluent in Punjabi, which is an official language in Haryana and Delhi.[15] The Tribunal accepts on the basis of the country information submitted by the applicant that there have been recent instances of violence committed against Sikhs in Indian states including Haryana, but that this information contains no reference to specific recent instances of violence directed towards Sikhs (as opposed to Sikh farmers and/or politically active Sikhs) in Delhi.

    [15]Maps of India, available at

29. The Tribunal has considered the potential impact the applicant’s mental health, his past drug use and/or his historical sexual assault may have on the reasonableness of the applicant’s relocation. This prompted the Tribunal to:

    ·inform the applicant at the hearing that its focus was on the reasonableness of relocation;

    ·invite him to provide any evidence he wished the Tribunal to consider that is relevant to his capacity to move to another city in India; and

    ·encourage the applicant to speak to a counsellor or health professional at the immigration detention centre about the matters discussed at the hearing, and noted that it would have regard to this information when considering the impact (if any) on the question of relocation.

30. The applicant has not provided any submissions specifically directed to the reasonableness of relocation. The medical records obtained by the Tribunal (being those provided by the applicant before the hearing and those received in response to the Tribunal’s summons) contain no information about the sexual assault and/or an assessment of the potential impact of the applicant’s mental health and/or drug use if he was required to return to India. The Tribunal has considered the correspondence from the applicant’s wife and his wife’s financial documents, but as she and the applicant do not suggest that she will be returning with the applicant, and given that this material does not address why it would not be reasonable for the applicant to relocate within India, the Tribunal does not consider them relevant to this assessment.

31. Having regard to the country information referenced earlier in these reasons, and in the absence of any information to suggest that it would not be reasonable for the applicant and his wife to relocate to another city in India and the applicant’s oral evidence that he has resolved not to use drugs again, the Tribunal is satisfied that it would be reasonable for the applicant (and his wife, should she choose to accompany him) to relocate to an area outside Punjab, such as a large urban centre in Delhi, and that there is no real risk of significant harm to him should he do so. Accordingly, the Tribunal does not accept that there is a real risk that the applicant will suffer significant harm in India for reasons relating to his Sikh religion, his actual or imputed political activism, his mental health, his past drug use, his mother’s land dispute, his separation from his wife, his past sexual assault and/or being imputed as a gay man.

100.   In summary, and having considered the applicant’s claims individually and cumulatively, the Tribunal does not accept that there is a real risk the applicant will suffer significant harm for any reason as a necessary and foreseeable consequence of the applicant being removed from Australia to India. Therefore the applicant does not satisfy the criterion set out in s 36(2)(aa).

CONCLUSION

101.   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).

1. 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).

2. There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s 36(2).

   DECISION

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

Siran Nyabally
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.

…

20221128135538; ‘Woman among three Khalistani sympathisers arrested in Patiala’, The Tribune (28 December 2021), 20220722123915; ‘Jagtar Singh Johal: Trial date for Scot facing terrorism charges’, BBC News (16 October 2022), 20221017092659.

supporters in the state of Punjab by society and the authorities; prevalence of arrests, including methods used by the police to track them’, Immigration and Refugee Board of Canada (30 May 2022), pp.5–6, 20220714152655; ‘IND106294.E India: Situation of Sikhs outside the state of Punjab, including treatment by authorities and society; ability of Sikhs to relocate within India; treatment of Khalistan supporters or perceived supporters outside of Punjab (2017–October 2019)’, Immigration and Refugee Board of Canada, 16 December 2019, 20200310144059.