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

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
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.
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.
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.
On 23 October 2023 the applicant was detained pursuant to s 189(1) of the Act. He remains in immigration detention.
On 30 November 2023 the applicant applied for the protection visa. The delegate refused the protection visa application on 21 December 2023.
The applicant applied for review of the delegate’s decision on 2 January 2024.
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
The applicant claims to be a [age]-year-old Indian citizen who was born in [Village 1] village in [Punjab]. In…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 2400053 (Refugee)

Details

AGLC: 2400053 (Refugee) [2024] AATA 3219
Case: [2024] AATA 3219
Decision Date: 10 April 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a protection visa made by an Indian national. The applicant claimed to fear persecution in India due to his support for the Khalistan movement and the Shiromani Akali Dal (SAD) party, his Sikh religious identity, and alleged adverse attention from Indian authorities and anti-Sikh groups. He also raised concerns about a land dispute with his cousins and a pending criminal matter.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa, specifically whether he had a well-founded fear of persecution or a real risk of suffering significant harm if returned to India. This required the Tribunal to assess the credibility of his claims regarding his political affiliations, religious identity, and the alleged threats he faced.

The Tribunal found that the applicant had not provided sufficient evidence to substantiate his claims. While acknowledging his Sikh faith and the general political climate in India, the Tribunal was not satisfied that the applicant was a genuine advocate or supporter of the Khalistan movement or the SAD party to the extent that he would be specifically targeted. The Tribunal also noted the lack of evidence connecting him to high-profile political figures he mentioned and that he failed to provide promised "solid proof" of his alleged friendship with an individual jailed with Amritpal Singh. Furthermore, the Tribunal was not convinced that the applicant or his family had been the subject of adverse attention or treatment by the police or Indian authorities, nor that he faced a real chance of suffering serious or significant harm upon return. The Tribunal applied the principle that the onus is on the applicant to specify all particulars of their claim and provide sufficient evidence to establish it.

Consequently, the Tribunal affirmed the decision under review, concluding that the applicant had not satisfied the criteria for a protection visa. The Tribunal deemed it unnecessary to consider section 36(3) of the relevant Act as it was not satisfied that the applicant had a well-founded fear of persecution or a real risk of suffering significant harm if returned to India.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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 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). After finishing senior secondary school in [year], the applicant worked in various odd jobs in agriculture and dairy farming. 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]. The applicant’s wife travelled to Australia first, and the applicant followed in September 2017. The applicant has returned to India once, in 2018, to attend his mother’s funeral. The applicant was charged with several criminal offences in 2023, being [deleted]. His criminal matter remains pending in the [Court]. The Tribunal accepts the above matters to be true.The applicant’s claims for protectionSikh religion 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 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. 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. 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.

Evidence

Evidence Before The Court

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 EVIDENCEBefore the DepartmentProtection visa application 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. 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 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. 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

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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 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 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. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Country of nationality 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. 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 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). After finishing senior secondary school in [year], the applicant worked in various odd jobs in agriculture and dairy farming. 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]. The applicant’s wife travelled to Australia first, and the applicant followed in September 2017. The applicant has returned to India once, in 2018, to attend his mother’s funeral. The applicant was charged with several criminal offences in 2023, being [deleted]. His criminal matter remains pending in the [Court].