1725997 (Refugee) [2019] AATA 3577 (18 February 2019)

Last Updated: 17 September 2019

1725997 (Refugee) [2019] AATA 3577 (18 February 2019)

DECISION RECORD

DIVISION: Migration & Refugee Division

CASE NUMBER: 1725997

COUNTRY OF REFERENCE: India

MEMBER: Michael Hawkins

DATE: 18 February 2019

PLACE OF DECISION: Brisbane

DECISION: The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 18 February 2019 at 3:01pm

CATCHWORDS

REFUGEE – protection visa – India – Federal Circuit Court remittal – religion – Dera Sacha Sauda member – attacks by extremist Sikhs – credibility issues – delay in applying for protection – inconsistencies in evidence – teenage daughters’ educational achievements – referred for ministerial intervention – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 36, 65, 91R, 91S, 499
Migration Regulations 1994, Schedule 2 r 1.12

CASES
MIAC v MZYYL [2012] FCAFC 147
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA [1992] FCA 470; (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA [1994] FCA 1253; (1994) 52 FCR 437
Subramaniam v MIMA (1998) VG310 of 1997
SZATV v MIAC [2007] HCA 40; (2007) 233 CLR 18 and SZFDV v MIAC [2007] HCA 41; (2007) 233 CLR 51
Velauther Selvadurai v MIEA and Anor [1994] FCA 1105
Zhang v RRT & Anor [1997] FCA 423
Kavun v MIMA [2000] FCA 370

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
APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).
2. The applicants, who claim to be citizens of India, applied for the visas on 22 April 2014 and the delegate refused to grant the visas on 15 January 2015.
3. The applicants appeared before the Tribunal (differently constituted) on 22 September 2015 to give evidence and present arguments. That Tribunal (“the previous Tribunal”) affirmed the decision of the delegate not to grant the applicants protection visas on 12 July 2016.
4. The applicant sought judicial review of that decision by the Federal Circuit Court. The Court ordered, by consent, on 29 July 2016, that the original decision of the Tribunal be quashed and the matter be remitted to the Tribunal to re-determine according to law. It was conceded by the Minister that the original decision was affected by jurisdictional error because the Tribunal had failed to consider the applicant’s claim, or all integers of his claim, that he would face serious harm or significant harm in India from Sikhs or Sikh radicals on account of his membership of the Dera Sacha Sauda.
5. The applicant appeared again before the Tribunal on 9 January 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
6. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

RELEVANT LAW

7. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, the applicant 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.

Refugee criterion

8. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
9. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

10. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
11. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
12. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
13. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
14. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
15. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
16. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
17. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

State protection

18. Harm from non-state agents may amount to persecution for a Convention reason if the motivation of the non-State actors is Convention-related, and the State is unable to provide adequate protection against the harm.
19. Where the State is complicit in the sense that it encourages, condones or tolerates the harm, the attitude of the State is consistent with the possibility that there is persecution: MIMA v Respondents S152/2003 [2004] HCA 18; (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [23]. Where the State is willing but not able to provide protection, the fact that the authorities, including the police, and the courts, may not be able to provide an assurance of safety, so as to remove any reasonable basis for fear, does not justify an unwillingness to seek their protection: MIMA v Respondents S152/2003 [2004] HCA 18; (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [28]. In such cases, a person will not be a victim of persecution, unless it is concluded that the government would not or could not provide citizens in the position of the person with the level of protection which they were entitled to expect according to international standards: MIMA v Respondents S152/2003 [2004] HCA 18; (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [29]. Harm from non-State actors which is not motivated by a Convention reason may also amount to persecution for a Convention reason if the protection of the State is withheld or denied for a Convention reason.

Relocation

20. The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country: Randhawa v MILGEA [1994] FCA 1253; (1994) 52 FCR 437 per Black CJ at 440-41. Depending upon the circumstances of the particular case, it may be reasonable for a person to relocate in the country of nationality or former habitual residence to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. Thus, a person will be excluded from refugee status if under all the circumstances it would be reasonable, in the sense of 'practicable', to expect him or her to seek refuge in another part of the same country. What is 'reasonable' in this sense must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country. However, whether relocation is reasonable is not to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, political and socio-economic rights. The Convention is concerned with persecution in the defined sense, and not with living conditions in a broader sense: SZATV v MIAC [2007] HCA 40; (2007) 233 CLR 18 and SZFDV v MIAC [2007] HCA 41; (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.

Complementary protection criterion

21. 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 a protection 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 the applicant 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’).
22. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
23. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise 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 applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

State protection

24. Under s.36(2B)(b) 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 the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a 'real risk': MIAC v MZYYL [2012] FCAFC 147.

Relocation

25. 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. That relocation must be 'reasonable' is also a requirement when considering the definition of 'refugee' and 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: SZATV v MIAC [2007] HCA 40; (2007) 233 CLR 18 and SZFDV v MIAC [2007] HCA 41; (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.

Section 499 Ministerial Direction

26. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

Member of the same family unit

27. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include the spouse and children of the family head.

CLAIMS AND EVIDENCE

28. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Background:

29. The Tribunal has obtained the following background information from the applicant’s visa application forms:
30. The applicant is [an age] year old man from [Punjab], India.
31. The applicant is of the Hindu faith, is of Punjabi ethnicity and speaks Punjabi.
32. The applicant is married to the third-named applicant (Applicant 3) and has three children (Applicant’s 2, 4 and 5).
33. The applicant arrived in Australia [in] December 2007, under Passport No [deleted], issued [2006] and expiring [2016] pursuant to a subclass 457 Business visa granted on 5 October 2007 and expiring 5 October 2011.
34. The applicant returned to India [in] July 2009 and re-entered Australia [in] October 2009.
35. Applicant’s 2, 3 and 5 arrived in Australia [in] September 2010.
36. Applicant 4 was born in Australia.
37. Each of the applicants have individual passports.

Claims:

38. The Tribunal has obtained the following claims from the applicant’s visa application forms:
39. In answer to the question in his protection visa application form as to why the primary applicant left India the primary applicant stated:

“I FIRST ARRIVED IN AUSTRALIA [IN] DECEMBER 2007 ON SUBCLASS 457 VISA. I AM A DEEP FOLLOWER OF SATGURU GURMEET SINGH OF DERA SACHA SAUDA, SIRSA. THE DISPUTE BETWEEN SIKHS AND SACHA SAUDA PREMIS (FOLLOWERS) STARTED AFTER ON 29 APRIL 2007, OUR RELIGIOUS SECT HEAD- SATGURU GURMEET SINGH JI (SATGUR RAM RAHEEM SINGH) BLESSED ALL OF US WITH JAMME INSAAN. SIKHS THOUGHT AS IF OUR RELIGIOUS HEAD IS COPYING THE TENTH GURU OF SIKHS, THE BLOODILY CLASHES INITIATED BETWEEN OUR SECT AND SIKHS. 1997-2007 I WAS [AN OCCUPATION 1] AT MOHALI, AND WAS VERY CLOSE TO DERA HEAD AND MAIN DESIGNATORIES OF DERA AT SALABATPURA DISTT. BHATINDA. ONE OF THE BRANCH (ASHRAMS) NAMED AS "SHAH SATNAM JI RUHAANI DHAM" AT [VILLAGE 1] WHICH IS NEARLY [DISTANCE] FROM MY VILLAGE. I WAS BEATEN SEVERALLY BY SIKH PROTESTORS [IN] AUGUST 2007 CLASH AT [VILLAGE 1] DUE TO ABOVE TURMOIL. I WAS GIVEN THREATS AND ABUSES AT THAT TIME. MANY SIKHS CHASED ME FOR LONG TIME TO TRAP ME. MEANWHILE I LUCKILY GOT VISA OF AUSTRALIA WITHIN NEXT FEW MONTHS AND IN DECEMBER 2007 I DEPARTED FOR AUSTRALIA. ON [DATE]/07/2009 I VISITED INDIA TO MEET MY FAMILY. JUST A FEW DAYS AFTER MY ARRIVAL IN INDIA, I HAPPENED TO ACCIDENTALLY MEET THE FEW SIKH RADICALS WHO HATCHED A CONSPIRACY TO KILL [MR A] A DERA [MEMBER]. ACTUALLY, THEY STOPPED ME WHEN I WAS COMING ON MY MOTORCYCLE TOWARDS [VILLAGE 1]. THEY FORCIBLY STOPPED ME WITH WEAPONS IN THEIR HANDS AND ASKED ME FOR PETROL, I REQUESTED THEM TO TAKE THE PETROL AND LEAVE ME, THEY WERE IN HURRY AND WERE TALKING TO KILL DERA MEN IN SOME BUS, THEY WERE CONFUSED ABOUT SOME [MR A] [MEMBER] OF SALABATPURA DERA ASHRAM. THEY SLAPPED ON MY FACE AND ASKED ME TO VANISH. I REPORTED THE MATTER TO POLICE THROUGH MY VILLAGE HEADS. POLICE CONDUCTED RAIDS AND ARRESTED SOME PEOPLE. THEY WERE PARADED BEFORE ME DURING INVESTIGATION. RECOGNISED A FEW OF THEM, WHO WERE THE SAME MEN WHO STOPPED ME ON [DATE]/07/2009. THAT ON [DATE]/08/2009 SOME 4-5 SIKHS ATTACKED ME IN MY VILLAGE TO BEAT ME WITH SHARP EDGED WEAPONS. ONE OF THE ACCUSED OPENLY DECLARED TO KILL ME AND PUT HIS .12 BORE GUN TOWARDS ME AND SHOOT ME ON MY RIGHT SIDE OF THE BODY.THEY INFLICTED MANY INJURIES TO ME, VILLAGE PEOPLE RAISED ALARM TO SAVE ME, THE ACCUSED RAN AWAY FROM THE SPOT. I WAS BLEEDING HEAVILY AND FELL DOWN AND DID NOT KNEW WHAT HAPPENED LATER, I FOUND MYSELF AT HOME ON MY BED AFTER UNKNOWN DAYS. MY FAMILY WAS IN PANIC DUE TO THE INCIDENT. THE MATTER WAS REPORTED BY MY FATHER TO POLICE. POLICE DID NOT BOOKED THE MATTER AND PROMISED TO TAKE SRTICT ACTION. BUT RULING PARTY IN PUNJAB IS SUPORTING SIKH GROUPS THEREFORE, POLICE LASO DOES NOT TAKE ANY ACTION WHO IS IN DIRECT COMMAND OF CHIEF MINISTER. I HAVE BEEN LIVING A FEARFUL LIFE. MY FAMILY IS LIVING IN FEAR. AS MANY SIKH GROUPS THREATENED ME TO KILL ME AND MY FAMILY. I WAS WARNED BY MY VILLAGERS AND MY MOTHER TO LEAVE INDIA IMMEDIATELY TO SAVE MY LIFE. I FLEED TO AUSTRALIA ON [DATE]/10/2009. SINCE THEN I AM HERE. I AM TRYING TO AVOID THE HARM ON HANDS OF SIKHS WHO ARE LOOKING FOR ME IN INDIA. A RECENT WARNING CAME FROM INDIA THROUGH MY [BROTHER] THAT SOME SIKH GROUPS ARE PLANNING TO AVENGE UPON AND ARE AFTER MY LIFE. ANOTHER REASON IS THAT DERA HEAD MAY BE CONVICTED IN COMING DAYS AND THERE IS NO SECURITY THAT MAY SAVE ME. ALREADY HE TENSION BETWEEN THE TWO GROUPS IS AT THE PEAK. I HAVE RISK TO MY LIFE AND THAT OF MY FAMILY. I MAY BE KILLED THIS TIME.”

40. In answer to the question as to whether the primary applicant had experienced harm in India the primary applicant stated:

“I WAS SEVERALLY BEATEN BY SIKH RADICALS. ON [/08/2009] I WAS ATTACKED BY A

FEW ANTI-SACHA SAUDA PREMIs AT MY VILLAGE AND SHOT ME WITH GUN, I WAS

SERIOUSLY INJURED. MY FUNDAMENTAL RIGHT TO LIFE HAS BEEN VIOLATED. NO ONE

COULD HELP ME IN SUCH SITUATION BEING A COMMON MAN”

41. In answer to the question as to what the primary applicant fears may happen if he returns to India the applicant stated:

“I DO FEAR THAT ANTI-DERA SACHA SAUDA PEOPLE WILL KILL ME AND MY FAMILY”

42. In answer to the question as to who the primary applicant thought would harm him on his return to India, the primary applicant stated:

“SIKH COMMUNITY, SIKH RADICAL GROUP AND MEN WHOM I RECOGNISED IN POLICE STATION BEING ACCUSED OF ATTEMPT TO MURDER OF DERA-MEN IN MID JULY 2009 WILL KILL ME, AN ATTEMPT TO KILL ME HAS ALREADY BEEN MADE. I WAS LUCKY TO SAVE MY LIFE.”

43. In answer to the question as to why the primary applicant thought he would be harmed if he returned to India, the primary applicant stated:

“I HAVE INFORMED THE POLICE OF THE APPREHENSION OF COMMISSION OF SOME CRIME BY CERTAIN ACCUSED AND BEING A TRUE FOLLOWER OF SATGURU GURMEET SINGH JI, SIKH RADICALS WANT TO ELIMINATE ME. SIKHS AHVE ALREADY TTACKED ME AND ATTEMPTED TO KILL ME BY SHOOTING STRAIGHT ON ME IN 2009.”

44. In answer to the question as to whether the primary applicant considered that the Indian authorities could protect him if he returned, the primary applicant stated:

“POLICE IN PUNJAB DO NOT ENTERTAIN US DUE TO POLITICAL AND REASONS BEST KNOWN TO THEM. MOREOVER, SIKH COMMUNITY IS AFTER MY LIFE AND NO BODY COPULD HELP ME WHERE A DEEP CONSPIRACY IS HATCHED. I AM A COMMON MAN, HOW CAN POLICE SAVE ME EVERY TIME, - POLICE HAS ALREADY ARRESTED A FEW SIKH RADICALS ON MY COMPLAINT, BUT STILL I WAS ATTACKED OPENLY IN DAY LIGHT, I AM BEING THREATENED CONTINUOUSLY. MY BROTHER HAS PASSED ME A MESSAGE THAT SIKHS WARNED THAT IF I EVER RETURNED TO INDIA I WILL BE DONE TO DEATH.”

45. The Tribunal noted that the applicant had provided a number of news articles about past violence between Dera Sacha Sauda (DSS) members and Sikhs.

Hearing:

46. The applicants attended the Tribunal on 9 January 2019. The hearing was assisted by an interpreter in the Punjabi and English languages. Their representative accompanied them at the hearing.
47. The Tribunal opened the hearing by taking some time to discuss with the applicant the circumstances of how he came to be before the Tribunal that day.
48. The Tribunal broadly discussed the applicant’s visa applications, refusals and appeals, and the dates of each of them. The Tribunal discussed the date he made his protection visa application, the decision of the delegate and his application for review to the Tribunal.
49. The Tribunal discussed with the applicant his appeal to the Federal Circuit Court of Australia and the decision of that Court, noting the Court’s ultimate remittal of the matter to this Tribunal.
50. The Tribunal asked the applicant about the completion of the protection visa application forms. He said they were filled in by his wife and daughters after he had explained his claims to them. The applicant claimed that the contents of the completed forms were read back to him before he signed the application form. The applicant claimed that the contents of the application forms were true and correct and complete.
51. The Tribunal confirmed that Applicant’s 2, 3, 4 and 5 had no protection claims of their own.
52. The Tribunal confirmed that the applicant and the Representative had copies of the Protection Visa Application Form, the Delegate’s Decision and the Decision of the previous Tribunal with them. The Tribunal asked them whether they were familiar with the applicant’s answers to the questions relating to protection claims as had been presented in the Protection Visa Application and repeated in both the Delegate’s Decision and the Decision of the previous Tribunal. Both the applicant and the Representative confirmed that they were familiar with all claims and the applicant confirmed that the claims as presented were accurate and complete.
53. The Tribunal noted that the applicant arrived in Australia in December 2007 but did not make a protection claim until April 2014, some six and half years later.
54. The Tribunal asked the applicant why it had taken him some 6½ years to make a Protection Visa Application after his arrival in Australia. The applicant replied that he had come to Australia on a Section 457 Visa and he thought that he could get permanent residence on the basis of that visa. He said he didn’t want to get a Protection Visa. But he said he had issues with the Sponsor and Nominee.
55. The Tribunal asked the applicant why he didn’t want to apply for a Protection Visa Application. The applicant replied that the [business] owner that he was working for kept promising to give him permanent residency but then asked for $50,000.00. When the applicant changed [workplaces], the new owner promised to help him attain permanent residency, again through the Business Visa.
56. The Tribunal explained to the applicant that it was entitled to consider the length of time it took for the applicant to make protection claims in assessing whether the Tribunal considered the claims to be genuine. It stated that given the nature of the applicant’s claims, and particularly the claim of assault and threats from Sikhs in 2007, that it was surprised that it had taken so long for the applicant to make his claims.
57. The Tribunal noted that the applicant’s Section 457 Visa expired in 2011. It asked the applicant why he didn’t apply for the Protection Visa then instead of seeking a new Section 457 Visa and then ultimately appealing against the rejection of that application. The applicant replied stating that he thought he could get it done on the jobs basis. He said he didn’t want to disclose his story.
58. The Tribunal asked the applicant why he wouldn’t want to do that, given that he was seeking the protection of this country. It asked why he wouldn’t want to tell his story to the very people that can assist him and offer him that protection that he sought. The applicant again replied that he thought that being [an Occupation 1] would get he and his family residency in Australia.
59. The Tribunal noted the applicant’s claim that he had been assaulted in 2009 upon his return to India for a period of three months. The Tribunal asked the applicant, given the nature of the assault, why he didn’t apply for protection when he returned to Australia in 2009. The Tribunal noted the circumstances of the assault and experience that he had had, including that he had been shot, and that his brothers told him that it was unsafe for him to return to India unless he stayed inside the house. Again, the applicant replied that he thought the Section 457 route would work.
60. The Tribunal then suggested to the applicant that he only applied for the Protection Visa as he had no other option after his appeal rights on the work visas were exhausted, and that it was a last resort. The applicant replied stating that he had no other option but that he feared for his safety and the safety of his family.
61. The Tribunal revisited the issue of the applicant returning to India in 2009. It noted the applicant’s claim that he had been assaulted by a group of Sikhs during a congregation in 2007. The Tribunal stated that it might consider that his claims weren’t genuine if he was prepared to return to India and to the very location where the circumstances that gave rise to the claim took place. The Tribunal reminded the applicant that he had claimed that bad things were happening to members and supporters of the DSS and that his brothers had told him to stay inside the house if he came back. The Tribunal asked the applicant why he went back to India.
62. The applicant replied saying that in 2007, his experience was that which all followers of the DSS had, that is, everyone at the congregation was attacked on that day. He said he went back because his children were crying and in a bad way. He restated that his brothers said it should be okay to return if he stayed inside the house.
63. The Tribunal asked the applicant about the events in 2007. The applicant replied that on 29 April 2007, the guru did something that offended the Sikhs. The Sikhs responded by attacking DSS congregations. On that day, there were 200 people at the congregation and about 45 Sikhs attacked the congregation. He said that he was outside and was assaulted by the Sikhs but that the family were inside the building and were not injured.
64. The Tribunal asked the applicant when his fear of harm actually arose. Was it in 2007 at the time of the congregation being attacked or was it in 2009 when he was purportedly attacked personally?
65. The applicant replied that in 2007 he thought he was in danger but not as much as he was in 2009. He said that he didn’t think his life was in danger in 2007. He went on to state that in 2009 he felt that his life was in danger and, as a consequence, set about selling his house and bringing his family to Australia. The Tribunal noted that the family didn’t arrive in Australia until September 2010.
66. The Tribunal asked the applicant about the event in 2009. The applicant replied that [in] August 2009, he was shot and beaten by a group of Sikhs. He said he was taken to hospital but then sent home that day. He said when he was released from the hospital, he went back to Mahali, where he had been living and working as [an Occupation 1]. The applicant then said that the next day, everyone was upset, including his children, wife and his parents. He said it was then that he decided to sell the family home that was in Barnala.
67. The Tribunal asked the applicant, given that the alleged assault took place [in] August 2009 and that the family did not arrive in Australia until September 2010, why it had taken over a year to get the family relocated. That length of time might suggest that the applicant didn’t take his claim that his life was in danger too seriously. The applicant replied that the person that he was working for in Australia didn’t pay him for a period of four years and was then wanting $20,000.00 from the applicant to pay the tax. He also said that he had to sell the house.
68. At this time, the Tribunal took a diversion from the claim to enquire as to why the applicant had let his employer not pay him for a period of four years. The applicant replied that he had been locked in the factory shed for 2½ years and had not been allowed out. He said that he was never provided with a key to the factory. The Tribunal asked the applicant whether he had ever lodged a complaint in relation to his treatment. He replied that he had lodged a case with Fair Work Australia, but that the case had become “lost”. The Tribunal asked the applicant whether he reported this to the Department when he was appealing against the rejection of his 457 Visa. The applicant believed that he had. The Tribunal asked the applicant whether it would find any mention of his experience in the decision of the Tribunal relating to his 457 Visa Application. The applicant replied that the Tribunal probably wouldn’t find any reference to it as he believed that no one else knew about his being locked up. He said that nobody else knew about it and therefore he had no evidence of it. Furthermore, the applicant said that the owner had told him that if he told anyone about having been locked up, the owner would tell the Police.
69. The Tribunal stated to the applicant that it had noted that this situation of him having been locked up for 2½ years in a factory had not been mentioned in his claims, had not been mentioned to the Department during his interview and that the Tribunal could find no record of it during the hearing of the previous Tribunal. The Tribunal stated that this caused it to have some concerns about the veracity of his account. In fact, the Tribunal ventured to state that it was an incredible story and worse than many stories that we see on current affairs television.
70. The Tribunal asked the applicant for some detail about his experience of having been locked up for 2½ years and not having been paid for four years. The applicant obliged by stating that this experience took place in [State 1]. The applicant named the company he worked for and described to the Tribunal what it did. He said he worked in the factory. He said that after 2½ years, he started working in the factory owner’s [business] elsewhere in [State 1]. It was then that he moved in to the owner’s house and lived with the owner’s family.
71. The Tribunal stated again its concern that the allegation of him having been locked up for 2½ years had not been raised before, and further noted that he then apparently lived voluntarily with the owner and his family in the owner’s own home. That didn’t suggest to the Tribunal that the applicant was in any way aggrieved by the conduct of the business owner.
72. The Tribunal then moved on to the matter of the applicant’s membership or support of the DSS.
73. It asked the applicant when he became interested in the DSS. The applicant replied that it was in 1993.
74. The Tribunal asked the applicant why he became interested in the DSS. The applicant replied that he used to listen to cassettes with a friend and he said he liked what he heard. He said the cassettes were peaceful. He said he then started visiting a place where members and supporters congregated. This was in Sirsa in Haryana. He said he visited Sirsa every month or so.
75. The Tribunal asked the applicant how far away Sirsa was from Barnala. He replied that it was about 100 kilometres away.
76. The Tribunal asked whether the rest of the family were also supporters of the DSS. The applicant replied that the whole family were followers.
77. The Tribunal asked whether the applicant had attended any congregations in Australia since he had been here. The applicant replied that he followed the principles of DSS in Australia every day. He stated that there was no formal structure where he lived in [his current town]. He said that there was only congregations in [two cities in Australia].
78. The Tribunal asked the applicant what his involvement in the DSS was in India. He replied that he was a helper when he was in India. The Tribunal noted that he was not a leader.
79. The Tribunal asked the applicant whether, if he had to return to India, would he continue to be a follower of the DSS. The applicant replied that he would not return to India as he would be killed. The Tribunal repeated the question, emphasising the issue of “if” he had to return to India. The applicant replied that he and his family would continue to follow the teachings of the DSS.
80. At this time, the Tribunal elected to take evidence from the applicant’s three witnesses.
81. The first witness was his [daughter]. Her evidence was taken in English.
82. The witness stated that there was danger in her father’s life. She then went on to discuss how difficult it would be for the family to relocate. She said that no matter what town you moved to, the culture was different. She even noted that their skin colour would be different within different towns. She said that relocating wouldn’t make them safer.
83. The Tribunal asked the witness about how she knew that her father was in danger. She said she has seen her father’s scars. The Tribunal confirmed that the applicant was not a witness to his assault. She confirmed that she was not. The Tribunal confirmed that the applicant would have only been about [age] years of age when she came out to Australia. The witness confirmed that.
84. The witness then discussed how she believes that Australia is home. She said going back to India would not be going home. She went on to discuss how she wants to be [an occupation] in Australia and that she has received a scholarship to the University of [State 1] to [study]. The witness presented an unsigned letter from the University of [State 1] indicating that she had been accepted into a university campus on a part-time basis. The Tribunal noted that the letter was dated [January] 2019 and was unsigned.
85. The Tribunal then spoke with the second witness, who was the applicant’s other [daughter].
86. The second witness spoke of the family’s inability to relocate on the basis that they won’t be able to speak the languages. She spoke of the many different languages in India, noting the different dialects within each town and city. The Tribunal noted the witness’ ability to speak English, Hindi and Punjabi. The witness agreed that she did speak those languages, but that didn’t guarantee that she could speak the different dialects of each.
87. The Tribunal asked the witness whether she had been to Mahali where her father had lived and worked. She said she had not.
88. The Tribunal then spoke with the third witness, the applicant’s [wife].
89. The Tribunal asked this witness how far it was from Barnala to Mahali. She thought it was about 100 kilometres.
90. The witness stated that her husband’s life will be in danger. Asked how, she replied that it was not just because he is a supporter of DSS, but it is because he recognised the man who was going to kill the DSS leader.
91. The witness presented x-rays of the applicant’s shoulder. She then said she could not bear to see that happen to her husband again. The witness then presented numerous media clippings in relation to the treatment of DSS supporters in India.
92. The Tribunal invited the witness to have the Representative formally submit those media clippings to the Tribunal after the hearing.
93. The witness said that she had made a formal complaint to Fair Work Australia about her husband’s employment conditions. She said she would try and find copies of the complaint. The Tribunal asked could she recall when she had made that complaint. She thought it was in 2013. The Tribunal noted that was three years later.
94. The witness then went on to also discuss how relocation will be difficult for the family. She said the Tribunal needs to consider the daughter’s future. She is also concerned about the danger to her husband and also stated that when the applicant was in Mahali, after the assault in 2009, he stayed inside and didn’t work. If he returned to Mahali now, he would need to work and could not stay inside.
95. The Tribunal asked the witness about how many family members still lived in India. She replied that the applicant has [siblings] living in Barnala, a [sibling] living in Barnala, another [sibling] living in [location] and [another sibling] living in [location]. She then went on to state that she has a mother [and siblings] living in [location] in Punjab and [other siblings] living in [location].
96. The applicant confirmed that she remains in contact with her family members.
97. The witness then presented a letter from the applicant’s brother advising him that Sikhs were still looking for him.
98. She also presented photographs of the injuries sustained by the applicant.
99. The Tribunal noted the formality of the letter from the brother to the applicant, not the form of a letter one would expect one brother to send to another, rather a letter one would send to a stranger.
100. The Tribunal resumed its discussion with the applicant. It asked the applicant to discuss the events that took place in 2009.
101. The applicant stated that he wanted to return to India to see the family. He said that his brothers advised him that it was not safe, but said that if he stayed inside the house, then it would probably be safe.
102. The applicant said that he did stay inside but went out once. He said that [in] July, he decided to go and visit his aunt. He went by motorbike and said that he was wearing a helmet. He said that at about 12 to 13 kilometres away from his home he was stopped by three or four Sikhs who were demanding petrol from him. He said that as he was filling a petrol tin, the three to four Sikhs started talking about them killing a [Mr A], a leader of the DSS who would be on a bus travelling into Barnala. They stated that they would kill him that day. The applicant said that he handed the petrol tin over to the three men and one of them slapped him and told him to run away.
103. The applicant said that he then went to the Head of the village and reported what he had heard. He said that the Head of the village then reported the incident to the Police. He said that the Police then went around to the various bus stops looking for a gang. He said that the Police found the men and took them in.
104. The applicant presented a copy of a newspaper article that outlined those events. He said it was he who provided the petrol to the men who had run out of petrol.
105. It is noted by the Tribunal that the newspaper story suggested that the attempted killing of the DSS leader was thwarted by the fact of a group of the men having run out of petrol.
106. The Tribunal asked the applicant to dissect his trip in relation to time. The Tribunal noted that the applicant had already stated that he left home between 4pm and 5pm in the afternoon. The applicant said that he was probably about half an hour into his trip when he was stopped. He then said it took another half an hour to return to the village to see the village Head. He said that [Mr A] used to travel to the village every day to volunteer and that he generally arrived in the village each morning between 9am and 10am.
107. The Tribunal noted that the applicant was out in the afternoon, not in the morning. The applicant replied that [Mr A] was coming to the village that evening for a special program.
108. The applicant then proceeded to advise the Tribunal of a court hearing in India about to take place a day or so after this hearing. The Tribunal asked the relevance of this hearing. The applicant stated that all of the dera’s will be shut down and the whole of Sirsa will be shut down. The Tribunal again asked the relevance of this information.
109. The applicant said the hearing will be in a jail, the Sunaria Jail in Panchkula.
110. The Tribunal again asked the relevance of this hearing. The applicant replied that it was a trial of DSS leader who had done something in 2017. It was going to be held in the jail because if he came out of the jail, it might provoke violence again.
111. The Tribunal asked who the violence would be between. The applicant said the Sikhs and the DSS followers.
112. The Tribunal pressed again for a link to the present claims. The applicant said that case shows how bad it still is over there. The Tribunal noted that and that there may be a protest, and moved on.
113. The Tribunal summarised all of these circumstances in the context of what appeared to be a number of incredible coincidences. It noted that the applicant had stated in his claims that he only went outside the home on one occasion. It noted that on that one day that he did go out, he was picked up by a group of Sikhs demanding petrol. Whilst providing them petrol, he overhears a plot to kill a leader of the DSS. Noting how extraordinary it would be for the group of Sikhs to have such a discussion in front of him, he is simply pushed away and told to disappear. The applicant then goes to the village Head, who goes to the Police, who then managed to thwart the plot and the whole incident is reported by the media. The Tribunal again restated what an incredible set of circumstances it was and asked the applicant to comment on that. The applicant replied that it was his bad luck to go out that day.
114. The Tribunal discussed Country Information with the applicant in relation to the DSS as was discussed at length during the hearing of the previous Tribunal. That country information is set again below. It noted that the Country Information contends that DSS members and supporters can live peacefully in India without being of adverse interest to authorities or Sikhs or extremists.

DSS

115. Dera Sacha Sauda came into existence in 1948 at Sirsa, in present-day Haryana, then part of the undivided state of Punjab within India. The organisation was founded by Shehanshah Mastana Ji Maharaj, a Sikh leader from Balochistan, with an eye to social reform and spiritual purification – among the Sikhs in particular, but also others in general.
116. The website of the DSS contains biographical information on the DSS founder Shehanshah Mastana Ji Maharaj, his successor, Pita Shah Satnam Singh Ji Maharaj, who took control of the DSS in 1960 and the current Guru, Gurmeet Ram Rahim Singh who took control of the organisation in September 1990.^[1]
117. The website of the DSS provides a list of 15 principles for DSS followers to observe. These principles include non-violence, meditation, hard work, vegetarianism, charity, abstinence from alcohol, and the rejection of usury, the dowry system, and discrimination on the basis of caste. In addition to these principles the website lists 47 “Principles of Jaam-E-Insan”.
118. Below is an extract of a September 2013 Issues Paper prepared by the then Department of Immigration and Citizenship – Indian: Sikhism, Cast & Deras:

Dera Sacha Sauda (Dera Sauda Sirsa)

One of the most popular and controversial deras in India is Dera Sacha Sauda (DSS), sometimes referred to as Dera Sauda Sirsa, due to the location of its headquarters near the town of Sirsa, Haryana.^[2]

DSS is a spiritual and social movement founded in 1948 by Shehenshahji Mastana, a Sikh originally from Balochistan. According to Himal South Asian, Mastana believed that Sikhism had strayed by allowing caste to re-establish itself within the religion. Mastana established the ashram “with an eye to social reform and spiritual purification – among the Sikhs in particular, but also others in general”.^[3]

Size, Caste Composition & Wealth

The DSS website states that it has 44 ashrams across India and claims to have over forty million followers worldwide.^[4] The Economist reported in 2007 that the DSS had “some 400,000 followers, both Sikhs and members of the Hindu majority, mainly among the poor, illiterate, and lower castes”.^[5] In 2007, BBC News reported that the DSS counted Sikhs, Hindus, Muslims and Christians among its followers, noting that “[m]ost of its followers are Dalits”.^[6]

In July 2013, Punjab News Line reported that the annual income of DSS doubled in two years, and is now estimated to be approximately one billion rupees per annum. As a spiritual organisation and charity, the DSS is exempt from paying tax on this income.^[7]

Beliefs & Services

The DSS website also outlines many of the core values and beliefs of the movement, such as “humanitarianism”, “selfless services”, rejection of dowries, “social evolution”, “eradicating social evils”, the provision of education to all, and the promotion of efficient organic farming.^[8] The DSS claims to routinely perform “around 70 social welfare activities”. Some of the programs listed on the DSS website include: the operation of a home for leprosy patients; the provision of wheelchairs to the disabled; the provision of financial aid to poor patients; the operation of a blood bank; the provision of financial assistance to poor students; and the provision of free legal aid. Other ‘welfare activities’ include encouraging people to shun homosexuality; the ‘emancipation’ of prostitutes; the “promotion of vegetarianism”; and “helping young divorcee women getting married again”.^[9] In July 2013, DSS controversially declared that thousands of its members were ready to marry widows who lost their husbands in floods in Uttarakhand the previous month.^[10]

Political Influence

As a consequence of its popularity among Punjab’s dalits and other scheduled castes, DSS Guru Gurmeet Ram Rahim Singh is routinely courted by leaders of the major political parties in Punjab, namely the Shiromani Akali Dal – Badal (SAD Badal), Indian National Congress (INC), and the Bharatiya Janata Party (BJP).^[11]

Dalits are estimated to constitute approximately 70 per cent of DSS followers. Unlike in Uttar Pradesh, the Dalit-dominated Bahujan Samaj Party (BSP) has not enjoyed political significance, let alone power, in Punjab.^[12] The Hindu reported in 2009 that the INC and SAD – Badal competed for Dera support ahead of state assembly elections on the grounds that dera followers “have a reputation of voting as a block”.^[13] In 2009, The Hindu reported:

Dera (sect) politics, especially after the 2007 fiasco, has become very important for political parties in the region that accounts for five constituencies out of the 13 in the State. It all started when the Dera followers were told to vote for the Congress in the last Assembly election in 2007 helping the party defeat the Shiromani Akali Dal (Badal) in the Malwa region that had traditionally supported the Akalis.

...

In the last few months, to prevent electoral reverses, the SAD (Badal) government is said to be softening its stand on the Dera by letting it re-open the branches in Punjab that were shut after the violence. But the Dera, according to some reports, is sceptical about the SAD. Congress leaders, wary of the SAD’s conciliatory moves, have been making frequent visits to Baba’s durbar.^[14]

Some seat-rich regions of Punjab are dominated by Dalits, such as Malwa, home to 69 state assembly seats. According to The Times of India, DSS delivered these seats to Congress in the 2012 elections.^[15] According to The Tribune, all major parties courted the DSS on the eve of the 2012 elections; “[a]s the Dera’s support is vital for every political party, so most candidates in the fray in these constituencies were uninhibited in visiting the dera and seeking its support”.^[16]

According to Gobind Thukral in The Hindustan Times,^[17] Gurmeet Ram Raheem Singh once received the assistance of SAD-Badal leader and Punjab Chief Minister Parkash Singh Badal. However, the guru and the chief minister fell out after Gurmeet Ram Raheem Singh publicly supported the INC in 2007, humiliating Badal and causing many Akalis to “seek revenge” by attempting to have “the Dera chief replaced by a more pliable person”. The result was significant violence, discussed below. However, writes Thukral, the BJP rebuked its SAD Badal coalition partner, “threatened to revise their sharing of power with the Akalis”, and refused to participate in bandhs (strikes) protesting the DSS.^1[18]However, by 2009, the Akalis were reportedly seeking to reconcile with the DSS and Gurmeet Ram Raheem Singh, prompting suspicions from INC leaders.^1[19]

Treatment of DSS followers and activists

No sources were located indicating that ordinary followers of DSS are targeted for harm by the dera’s opponents. No sources were located indicating that people have been harmed while visiting dera property or for utilising services provided by DSS. Sources do indicate that DSS activist meetings and rallies were the subject of protests and some violence in the past, particularly in 2007. While anti-DSS rhetoric continues to be enunciated by some religious and political groups, notably the Akali Takht and Sant Samaj, acts of violence or harassment against DSS activists are no longer common. It should also be emphasised that while DSS activists were routine recipients of violent attacks and protests in the past, they have also been participants in violence.

The most serious violence affecting DSS activists/groups occurred in 2007. In a now infamous act, DSS Guru Gurmeet Ram Rahim Singh appeared to imitate the revered tenth Sikh Guru, Guru Gobind Singh. Writing in The Hindustan, Gobind Thukral states that the guru’s “farcical manner” should have “provoked some wry humour”. However, the Sikh ruling elite saw a political opportunity to diminish the growing political power of the DSS guru and the dera:

...the political class saw in it an opportunity for consolidation of their respective political bases. Consequently, there were armed clashes that left scores of Dera followers and Sikhs injured and one young man dead. For the first three days, the police were mere spectators as sword and lathi-swinging mobs clashed in and around Bhatinda, the heart of Punjab’s prosperous Malwa. At the behest of the ruling Akali Dal and the Shiromani Gurdwara Prabandhak Committee (SGPC), the Sikh clerics occupying the five Takhts arbitrated, but their harshly-worded edicts only fuelled more hatred.^[20]

Similarly, The Economist argued that the Akali Dali (SAD-Badal) “encouraged protests against the Dera” and authorised “the police to arrest Mr Singh for hurting Sikh sentiments”.^[21] BBC News states Sikh leaders were seeking to punish Gurmeet Ram Rahim Singh for supporting the Congress Party ahead of Punjab state elections; “Sikh leaders, angry at the direct intervention by the DSS in the elections, seized the opportunity to whip up popular sentiments of their community against the DSS”.^[22] The violence reportedly lasted for six days and led to the death of at least one person and over 100 injured.^[23]

Anti-DSS violence and demonstrations once again erupted in June 2008 after a Sikh protestor was shot and killed in Mumbai by one of Gurmeet Singh’s bodyguards. Riots were reported in both Mumbai and Punjab.^[24] In October 2011, fourteen DSS members charged in relation to the shooting death in Mumbai in 2008 were acquitted.^[25]

In July 2008, radical Sikh groups organised bandhs (strikes), which turned violent after the alleged killing of a Sikh youth by sword carrying DSS members in Dabwali (near Sirsa); 17 people were injured in the ensuing violence. Daily News & Analysis^[26] reported that the bandh was supported by the Shiromani Gurdwara Prabandhak, a body in charge of Sikh holy sites.^[27]

One Sikh group commonly implicated in violent clashes with DSS is Ek Noor Khalsa Fauj.^[28] In 2009, The Tribune reported that “20 armed assailants of the Ek Noor Khalsa Fauj” attacked DSS members in Shimlapuri, Ludhiana. According to the report, “[a]rea residents said the followers of the Ek Noor Khalsa Fauj were armed with swords and other sharp-edged weapons”.^[29] A similar clash between the two groups was reported in March 2011 in the Moga district of Punjab after Ek Noor Khalsa Fauj attempted to disrupt a DSS meeting. DSS members reportedly responded by throwing stones at the Ek Noor Khalsa Fauj gurdwara.^[30]

Other radical Sikh organisations associated with anti-DSS actions include the Khalistan Action Committee, Sant Samaj, the All-India Sikh Students Federation (Sant Bhindranwale), and the Sikh Youth Federation. In April 2009, these organisations travelled to the residence of Punjab Chief Minister Parkash Singh Badal and demanded that he close all DSS ashrams in Punjab.^[31] Sant Samaj, led by Baljeet Singh Daduwal, is described by The Hindu as ‘pro-hardline’ and like Ek Noor Khalsa Fauj, its members are known to take swords to anti-DSS protests.^[32]

In July 2009, a member of the DSS Mansa district committee, Lili Kumar, was shot dead in the district after having attended court in relation to a 2007 attempted murder case. In the past, Kumar’s house was allegedly set on fire.^[33]

The post-2007 rapprochement between SAD-B and DSS did not diminish the antipathy of the Akal Takht towards DSS.^[34] As noted previously, Ronki Ram has argued that the “near-exodus of dalits from Sikhism” towards the deras continues to enrage mainstream Sikh clerics, “who see it as a serious challenge to the Sikh-Khalsa identity”.^[35] In November 2011, the Akal Takht chief Giani Gurbachan Singh condemned SAD-B politician, former finance minister, and nephew of the Chief Minister, Manpreet Singh Badal after he met with Gurmeet Ram Raheem Singh at the DSS headquarters near Sirsa. Gurbachan Singh reportedly declared that Badal “was no longer a true Sikh”, and warned that he could face a boycott by the Sikh community.^[36] An SGPC member, Navtej Singh Kauni, was summoned by the Akal Takht after he attended a DSS congregation in Muktsar district in May 2013.^[37]

Clashes between DSS activists and opponents took place in November 2012 in Sirsa, Haryana, near the dera’s national headquarters. As a consequence, the town was subject to a curfew and police laid charges against a number of people, including DSS members. The Tribune reported that authorities closed all schools, colleges and other educational institutions in the district till 28 November. DSS blamed Guru Granth Sahib Satkar Sabha for the clash.^[38]

Perpetrators of Violence

DSS activists in a number of locations in Punjab and Haryana have been implicated in perpetrating violence.

In November 2012, “nearly 2,000 Dera Sacha Sauda followers” were booked for violence in Sirsa, Haryana “which left at least 12 people injured” and saw six vehicles set on fire. The violence was reportedly sparked “following some remarks made recently against the sect’s head, Gurmeet Ram Rahim Singh”.^[39]

In 2010, Hindustan Times reported that DSS followers “went on a rampage...across Haryana and Punjab, torching buses, vandalising public property and unleashing panic among the public. In Haryana, at least 12 state roadways buses were torched allegedly by the Dera followers”. The violence and vandalism were reportedly triggered by the arrest of DSS chief Gurmeet Ram Rahim Singh “for his alleged involvement in the murder of a former Dera manager, Fakir Chand”.^[40] In September 2012, 34 members of DSS were sentenced to prison terms of up to three years for participating in the violence.^[41]

As noted in the previous sub-section, sword carrying DSS members were implicated in the July 2008 killing of a Sikh youth in Dabwali, Haryana.^[42]

In 2007, The Tribune reported that DSS members stoned a Gurdwara in Chanpura, Punjab after locals objected to the dera’s placement of loudspeakers at their village premises.^[43]

DSS Guru Gurmeet Ram Rahim Singh has been charged in connection with two murders and a rape.^[44] Witnesses continued to be called to the trial in August 2013.^[45]

119. However as set out in the delegate’s decision (a copy of which was provided to the previous Tribunal by the applicant), independent sources report the riots which broke out following the conviction occurred because DSS followers went on a rampage after the conviction of Gurmeet Ram Rahim Singh, burning down gas stations and train stations, torching vehicles and clashing with police.^[46] Contrary to the applicant’s claims, DSS supporters were the instigators and not the victims of that violence. As discussed with the applicant at the previous hearing, in October 2017 the Haryana state assembly made a point of paying homage to the DSS followers killed in the violence. It is reported that sympathetic representatives in the assembly came from a wide range of political parties, noting that DSS had been an important vote bank for the parties for at least a decade.^[47]
120. The Tribunal again suggested to the applicant, as the previous Tribunal had, that this did not appear to support his claim that the Indian authorities targeted or otherwise failed to protect DSS supporters.
121. The applicant has provided no further country information to the Tribunal that would indicate that DSS supporters are being targeted by the Indian authorities or any other group or person since the conviction and jailing of Gurmeet Ram Rahim Singh in August 2017.
122. This Country Information suggested to the Tribunal that notwithstanding the latest news that the DSS leader had been arrested for sex crimes, DSS members and supporters were not being targeted by the community, Sikhs or other extremists. It suggested then that at this moment in time, on the basis of all of the information available to the Tribunal, it appeared that being a member or supporter of the DSS would not give rise to a chance of serious harm being experienced by said members or supporters.
123. The Tribunal then suggested to the applicant that perhaps his case was more about him personally being a target of those four Sikhs who were allegedly identified by the applicant some of whom were apparently subsequently arrested. The applicant agreed. Applicant 3 nodded her agreement.
124. The Tribunal then asked the applicant to discuss the circumstances leading to him being shot [in] August 2009.
125. The applicant stated that he was shot as a result of identifying the four men.
126. He stated that he was going out to get some milk. He was going no further than 500 metres from home.
127. The Tribunal noted that his claims stated that he only ever went out of the house once while he was in India on this occasion. When this was put to the applicant, he did not count going to the local shop as going out.
128. The Tribunal asked the applicant how he was involved in identifying the four men. It asked him specifically whether he had been called upon to attend some sort of identification parade. He stated that was not the case and that the four men identified him and then set upon him.
129. The Tribunal notes the very specific record of the applicant’s claim contained in the Protection Visa Application wherein he says, “I reported the matter to Police through my village Heads. Police conducted raids and arrested some people. They were paraded before me during investigation. Recognised a few of them, who were the same men who stopped me on [date]/7/2009”.
130. The Tribunal noted again that this appeared to be another incredible coincidence that on only the second time he went out of the house, he should be identified by the same four men who just happened to be out near his house and identify him as being the only man who could have possibly identified them from the petrol incident.
131. The applicant clarified that they weren’t the same four men, they were different people. The Tribunal confirmed that the men weren’t members of the same group of three to four Sikhs who he had had contact with [in] July.
132. The Tribunal explained that it was trying to join the dots as to how the applicant was identified. It explained that [in] July the applicant was held up by four men and he gave them petrol. Then, [in] August, five weeks later, and on only the second occasion that he had left his house, despite having previously said he only left the house once, the applicant gets identified by two different people as being the person who must have identified the first four. The Tribunal reminded the applicant of their previous discussion about the incredible coincidence of bad luck and then stated that it seemed now there was a second incidence of equally bad luck in being identified and then shot. The Tribunal stated, that like the previous Tribunal, it doesn’t dispute that the applicant has been injured, as he has the shrapnel and scars to prove it, it is more interested in the causal connection between the fact of his having been shot and his claims as to how he came to be shot.
133. The Tribunal asked the applicant to explain what went on during the assault. The applicant replied that three or four men came up behind him and pushed him to the ground from behind. The applicant said that he asked the men to spare him as he had young daughters but they said no, as you caused our men to be caught. The applicant then said that he became unconscious. The Tribunal asked the applicant to re-enact the assault. The applicant restated the events, adding that the men put their boot on his neck whilst he was on the ground so that he could not properly see who was involved.
134. The Tribunal asked the applicant how many men were involved as he had previously said two men and then, more latterly, said three or four men. He stated that as he was on the ground with a boot on his neck, he couldn’t be certain.
135. The Tribunal asked the applicant how it was that he was identified. It asked whether they were the same men as were involved in the theft of petrol from him. He replied that he doesn’t know whether one or two of the men or both of them were part of the first group.
136. The Tribunal asked the applicant how he could have been identified if he was wearing a helmet. He replied that the first group of men had asked him to remove his helmet. The Tribunal confirmed then that the applicant believes that he was identified from behind.
137. The Tribunal stated that it doesn’t dispute that the applicant has at some time been shot, but it said that it is struggling with this incredible coincidence of his bad luck.
138. The applicant accepts that it is his bad luck and said that he hasn’t followed what has happened to any of the men since he returned to Australia.
139. The Tribunal again restated the coincidence of him being identified and found on only the second time that he had left the house and within 500 metres of his home. The Tribunal asked the applicant to comment on that. The applicant restated that it was his bad luck. The Representative proposed a theory that the men may have been looking for him since July. The Tribunal noted that that was a period of some five to six weeks. The Tribunal acknowledged that it was a theory and would consider it.
140. The Tribunal stated to the applicant that it didn’t want to labour the point but needed to ask him again about when the two men caught him on the way to the shop to get milk, how long it took for them to identify him, to throw him to the ground and to shoot him.
141. The applicant replied that he wasn’t sure how they identified him. He said he was walking and then he was attacked from behind and he fell to the ground and was unconscious. He corrected himself to say that he was barely conscious as he begged them to spare him and told the men that he had little kids. The applicant said that the men replied that they were not going to spare him because he had got their people caught. They then proceeded to use their swords and cut his arms and legs.
142. The applicant went on to confirm that there weren’t two people, that there were three or four people.
143. The Tribunal confirmed with the applicant that it wasn’t two men as previously advised. The applicant replied that he wasn’t sure because they hit him from behind. He said they hit him with a rod and he fell on the ground so he didn’t know how many people there were. He said that from the perspective of the men, he was dead and they just left him there.
144. The Tribunal stated that they must have known that they shot him in the shoulder and not in the head or the heart as they shot him from point blank. The applicant replied that they chopped his arms and legs as well. He then went on to explain that as he had some body fat, the bullet didn’t hit him directly. He said that if it had gone straight, he would have died.
145. The Tribunal attempted to restate the applicant’s recollection of events. It noted that there were an unknown number of men who pushed him to the ground with swords and a rod and with a gun shot him at point blank range. However, they actually shot the ground and the bullet ricocheted into his arm and they left him thinking he was dead.
146. The Representative intervened and stated that he didn’t believe the applicant had said ricocheted.
147. The Tribunal thanked the Representative and noted that the applicant had used the word “bounced”. It noted that the applicant said it wasn’t a direct hit.
148. The applicant appeared confused so the Tribunal sought clarification of the applicant’s evidence piecemeal.
149. The applicant confirmed that an unknown number of men came up behind him. He then confirmed that he was pushed to the ground. He confirmed that he was hit by a rod. He then stated that when he was on the ground one of the men had his foot on his neck and he was begging and was then hit a second time. The Tribunal confirmed that the applicant was begging to be spared because he had young children. The applicant confirmed that that is what he said and straight away he was hit again with the rod. He then said that he didn’t know what happened after that.
150. The Tribunal reminded the applicant that earlier he had said that the men had replied to him that they weren’t going to spare him because he was the cause of their friend being caught or their colleagues being caught.
151. The applicant stated that after they hit him the first time he was still conscious and he begged them to spare him. He stated that the men replied that they would not spare him, that they will kill him, and that after that he was hit again but he doesn’t know what with. He said he didn’t know whether it was a rod or what it was, but after that he didn’t know what was going on.
152. The Tribunal again asked the applicant when it was that the men said to him that he would not be spared because he was the one that caused their friends to be caught. The applicant replied that it was after he was hit for the first time with the rod and he asked them to be spared and they said that they “won’t leave you because you got our men caught”.
153. The Representative intervened to offer that, from his experience, it appeared that a shotgun had been involved. He stated that there were shotgun pellets there and it seems that the point of entry was the applicant’s back. The Tribunal noted that and further noted the Representative’s remark that it appeared difficult to understand how there could have been a ricochet.
154. The Tribunal acknowledged that there was no ballistics report but was concerned that the applicant had said the bullet bounced, but then later said he was unconscious and didn’t know what had happened. The Tribunal commented that it appeared that the applicant was now speculating as to events after being struck a second time.
155. The Tribunal restated the events as follows: The men told the applicant they were going to kill him. The men had the applicant on the ground with a shotgun pointed at him. They fired the shotgun but failed to kill him. The applicant replied that the men had said they would not spare him and that he didn’t know when he was shot. He remembers being hit by a rod and him begging them, but that he doesn’t know when he got shot. He then said that he was unconscious because his legs and arms had been chopped.
156. The Tribunal then explained to the applicant that it needed to evaluate all of the applicant’s evidence. It noted that from the Country Information that prevailed as at 2016, there was a contention that DSS members could move freely and peacefully around India. The most recent Country Information from DFAT which is dated 17 October 2018 does not refer to any change to that status. The Tribunal noted that it was aware of what happened in 2017 relating to the charges against the leader of DSS and also noted information that there have been protests involving members of the DSS and the government, but the Tribunal also noted that those protests have been at the instigation of the DSS followers.
157. The Tribunal stated that it appeared to it at this time that on the strength of the Country Information that it has seen, it is not persuaded that members of the DSS, such as the applicant, have a risk of serious harm in India. The Tribunal recalled the applicant’s wife making the observation that the applicant’s concerns were more about the men that shot the applicant than him being a member of the DSS. The Tribunal acknowledged that and observed that its consideration needed to be about whether the applicant, having been a man who was possibly involved, accidentally, in a plot to kill [Mr A] and having inadvertently witnessed or become privy to what was going to happen in relation to that plot to kill [Mr A] and that as a consequence, was then targeted by men claiming to have identified him as the person who caused their colleagues to be caught.
158. The Tribunal noted that this alleged assault took place in 2009 and that it was now 2019. It asked the applicant why he would be a target some 10 years later, and even more-so, if they thought that they had killed him. The applicant replied by referring again to his brothers’ letter that said the Sikhs were still looking for him. He said that the Sikhs would have thought that he, the applicant, would have fled back to Australia and they would have noted that there had been no funeral or cremation for him.
159. The Tribunal noted the length of the hearing and that it had been a long afternoon for the applicant. It noted that it had expressed its views to the applicant in relation to his claims being a follower of DSS in India and that recent Country Information supported the contention that members of the DSS, who were in their hundreds of thousands in India, and in their millions internationally, could move freely about without concern or fear of harm. Nevertheless, the Tribunal invited the Representative to submit any new information that he may have that might persuade the Tribunal otherwise.
160. The Tribunal then said to the applicant that it needed to consider the applicant’s recount of events as stated in evidence during this hearing, and noting that the applicant appeared to have given much more detail during this hearing than he had given to the Delegate and to the previous Tribunal Member. The Tribunal noted that the detailed recount made the applicant’s evidence even more incredible.
161. The Tribunal stated to the applicant that there was one more issue that it needed to consider. That was the issue of the applicant’s capacity to relocate within India.
162. The Tribunal noted all of the Country Information that the previous Tribunal had considered and had set out in its decision. The Tribunal noted the Country Information that it had discussed and had listened to the information and evidence that the applicant’s family had stated about how difficult relocation might be for them.

Relocation

163. USDOS states that Indian law provides for freedom of movement within the country, and the government generally respects this in practice.^[48] The UK Home Office reported that background checks by the Indian police are not conducted where Indian nationals relocate within India, as the authorities have neither the resources nor the language abilities to monitor internal relocation. While there is not currently a national registration system for Indian citizens, several proposals and versions of identity cards are being used in various states for various purposes.^[49]
164. The IRBC corresponded with an official at the Canadian High Commission in India, who “said that police share information about ‘law enforcement’ but indicated that ‘there is limited sharing of information between police forces’ and police are not required to ‘report the movements of persons of interest to other offices’”.^[50] In relation to tracing a person through registration, India reportedly does not have central registries for housing, rentals, schools, etc. If a person wishes to transfer voter registration to another location, however, the elections committee requires proof of address.^[51]
165. The previously mentioned official from the Canadian High Commission in India indicated to the IRBC that as there is no central police database and records are kept in local police stations in India, “this makes it ‘extremely difficult, if not impossible’ to locate an individual as a result of a security check, unless there is a match between a local police station and the subject of a security check”.^[52] It was reported in April 2011 that an applicant was not required to go to a police station to obtain identity documents such as driver’s licences, voter cards, or ration cards.^[53]
166. India has some 1.2 billion people in some 27 million towns, cities and settlements, and the largest 8 cities have between 4 and 12 million people each^[54][55][56].
167. Hindi is the majority language in the following northern states: Himachal Pradesh, Haryana, Delhi, Uttaranchal, Uttar Pradesh, Rajasthan, Madhya Pradesh, Bihar, Jharkhand and Chhattisgarh. Hindi is the official language of eight of the nine states listed above.^[57] Hindi is also spoken in Punjab, and is understood by approximately 40 per cent of the Indian population.^[58] According to the Encyclopaedia Britannica Online, Hindi is spoken as a first language by approximately 425 million people across India, and as a second language by an additional 120 million.^[59] English is recognised as an “associate” official language to Hindi, and is used predominantly by educated and professional groups, the media, and in administrative contexts.^[60] Although only a relatively small number speak English as their first language, an estimated 125 million people speak English as either a first, second or third language. Punjabi is spoken by over 30 million people in India, it is spoken in Chandigarh, Delhi, Himal Pradesh, Jammu, Punjab, Rajastan and Uttarakhand. It is the official language of Punjab, Haryana and Delhi.^[61]
168. The Times of India reported on 23 June 2013 that the overall Indian unemployment rate was 3%.^[62] In April 2013, the World Bank issued a report in which it expected economic growth in India to accelerate to 6.7% in 2015, and concluded that long-term prospects remain bright.^[63]
169. The Tribunal noted the findings of the previous Tribunal that it would not be unreasonable for the applicant to relocate within India given the huge population within India, given the fact that the applicant can read, speak and write Punjabi, which is spoken by over 30 million Indians and is spoken in many of the major cities within India and given the applicant’s significant experience working as [an Occupation 1] in Australia and in India. It also noted the previous Tribunal’s finding that the applicant had previously been able to support his family in India through his employment as [an Occupation 1]. The Tribunal noted the Country Information that indicated that unemployment in India is low and that the country is experiencing substantial economic growth.
170. As the previous Tribunal had done, this Tribunal also noted the capacity of the applicant’s family to all speak English and noted the applicant’s capacity to have been able to settle and work in Australia despite his claim to not be able to speak English. The Tribunal noted that the applicant could be assisted with any language difficulties by his wife and daughters if they were to return to India in much the same way as they had done in Australia.
171. Notwithstanding the Tribunal’s observations above, the Tribunal stated that it was prepared to accept a submission from the Representative specifically in relation to relocation.
172. The Representative noted that the previous Tribunal had made certain findings that were not adverse to the applicant. It enquired as to whether this Tribunal would be making similar findings.
173. The Tribunal responded by saying that this was a hearing de novo and that it had to take a completely fresh look at the applicant’s application and claims. Accordingly, it was required to make its own findings. It noted that the decision of the previous Tribunal was made basically on the issue of relocation. The Tribunal noted that the previous Tribunal had made certain credibility findings that were adverse to the applicant, but accepted that the applicant had suffered an injury. The Tribunal also noted that the previous Tribunal had found that, whilst accepting an injury had been suffered, it did not accept that it was related to the applicant’s claim.
174. The Tribunal explained that it was in a similar position at this time. The Tribunal stated that there were certain things that it could accept at this time. It accepted that the applicant was a follower of the DSS and that his family were all followers too. It accepted that the applicant was not a leader of the DSS or one who engaged in protests. The Tribunal accepted that the applicant follows the principles of that faith here in Australia and would most likely do so if he went back to India.
175. The Tribunal also acknowledged that the applicant has suffered an injury to his shoulder and elbow, but stressed that it needed to consider the causal connection between that injury and what the applicant has told it in relation to his claims.
176. The Tribunal said that if it were able to make favourable findings in relation to the applicant’s claims, it still had to consider the issue of the possibility of relocation.
177. The applicant replied that there is simply no place for him to go in India. He said that they don’t have a place to go and even if he could go to a different State, what about his family. He said the situation is not good for his family. He said that young girls are not safe in India and that his youngest daughter who is only [age] years old cannot speak Punjabi. He also added that the family have no savings, that they exist in Australia on Centrelink and that it is difficult to make ends meet. He also stated that he doesn’t have a car and that in the 12 years he has been in Australia he has no savings at all. He also added that the family have health issues and that his wife has had a [surgery].
178. The Tribunal acknowledged the applicant’s comments in relation to relocation and recommended that he instruct his Representative about all of those circumstances so that they may be included in the submission.
179. The Tribunal offered to forward to the Representative a copy of the current DFAT Report and also an audio recording of the hearing. The Tribunal gave the Representative two weeks from receipt of the audio to make his submission.
180. The applicant concluded his evidence by asking the Tribunal not to return the family to India, particularly for the sake of the children and that he would go to jail if required if it meant his girls could stay in Australia.
181. On 15 February 2019, the Tribunal received the following submission from the Representative:

In my respectful submissions, based on the evidence before the Tribunal on 9 January 2019:

The Tribunal should be satisfied that [the applicant] would face serious harm or significant harm in India from Sihks or Sikh radicals on account of not only his membership of the Dera Sacha Sauda (“DSS”), but also as a result of the events he witnessed and reported which culminated in the arrest of those involved in a plot to kill the DSS leader;

Because of his membership of the DSS and as a result of the events he witnessed and reported which culminated in the arrest of those involved in a plot to kill the DSS leader given the latter, the Tribunal should be satisfied that even if the Applicant was to relocate to another area within India, he would still face a very real risk of serious harm or significant harm from Sihks or Sikh radicals;

In the event that the Tribunal has any concerns about any perceived inconsistencies in the evidence of the Applicant to the Tribunal, the Tribunal should be satisfied that the inconsistencies are minor and explicable by a range of factors, including:

• The trauma that the Applicant has endured during the events the subject of the evidence before the Tribunal and the effects that trauma can have on the memories of persons; and

• The passage of time;

In the event that the Tribunal is concerned about the fact that the application for a Protection Visa was not made in a timely way, the Tribunal should be satisfied with the Applicant’s evidence that he was confident that he would obtain Permanent Residency in any event, is a reasonable explanation;

In the event that the Tribunal is concerned that the Applicant was the subject of “two incredibly coincidental incidences of bad luck”, the Tribunal should be satisfied that there is sufficient evidence to demonstrate that the incidences occurred in the manner described by the Applicant and that they were not merely coincidences but were very much linked/related to each other.

Country of reference / receiving country

182. The applicant claims to be an Indian national. Based on the copy of his passport provided to the Department of Immigration and Border Security (the Department) by the applicant, the Tribunal finds that India is his country of nationality and also his receiving country for the purposes of s.5(1) and s.36(2)(aa) of the Act.
183. Applicant’s 2, 3 and 5 claim to be Indian nationals. Based on the copies of their passports provided to the Department by the applicants, the Tribunal finds that India is their country of nationality and also their receiving country for the purposes of s.5(1) and s.36(2)(aa) of the Act.
184. Applicant 4, who was born in Australia, claims to be an Indian national. Based on the copy of her passport provided to the Department by the applicant, the Tribunal finds that India is her country of nationality and also her receiving country for the purposes of s.5(1) and s.36(2)(aa) of the Act.

Assessment of Claims and evidence, and findings:

185. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA [1992] FCA 470; (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
186. The Tribunal has considered carefully all of the applicants’ claims, individually and cumulatively, and makes the findings set out herein.

Credibility

187. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

...care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

188. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

189. The Tribunal was mindful of the nuances when communicating through an interpreter and clarified the applicants’ evidence throughout the hearing to ensure accuracy of understanding and that they understood Tribunal concerns. The Tribunal checked throughout the hearing that the interpreter and questions were understood and each time the applicant said he understood the interpreter. The Tribunal considered that the applicant was able to communicate effectively, understood the Tribunal proceedings and participated in a meaningful way. The Tribunal told the applicant that he may have breaks during the hearing as well to allow a break for him and the interpreter.
190. The evidence of the applicant provided at this hearing was, by and large, consistent with evidence previously given to the delegate and the previous Tribunal, except as specifically referenced herein. The Tribunal found the applicant’s evidence unconvincing, and in many cases, so implausible as to be fanciful and far-fetched.
191. At the end of the hearing, the applicant effectively threw himself at the mercy of the Tribunal, suggesting that he be put in jail rather than have the girls return to India. The Tribunal was certainly sympathetic to the applicant and formed the view that the applicant would do or say anything to enable his daughters to remain in Australia. The Tribunal, unfortunately, is of the view that that is precisely what the applicant has done.
192. The Tribunal will deal with each of the applicant’s claims in turn.
193. The Tribunal has had regard to the comments of Heerey J. in the Federal Court matter of Velauther Selvadurai v MIEA and Anor [1994] FCA 1105, where at paragraph 11 of the decision His Honour states:

The applicant complained of the tribunal’s taking into account the fact that the applicant did not lodge his application for refugee status until some 20 months after he had arrived in Australia and just prior to the expiration of his visa. In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of the applicant’s alleged fear of persecution....”

194. A delay in seeking protection can support an adverse credibility finding as well as a finding that the applicant's fear is not well-founded: Zhang v RRT & Anor [1997] FCA 423; Kavun v MIMA [2000] FCA 370 and Subramaniam v MIMA (Carr J,10/3/98). In Subramaniam v MIMA (1998) VG310 of 1997, the Court held that even a three month delay in lodging a Protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant's fear of persecution. While a delay in making a Protection visa application by itself is not conclusive it reasonably remains an indication in the applicant's case that the claimed fear of harm in this regard is not genuine.
195. The Tribunal asked the applicant on several occasions why he hadn’t applied for a Protection Visa earlier than he had.
196. For instance, the Tribunal asked the applicant why he hadn’t applied for a Protection Visa in December 2007 when he arrived in Australia. The Tribunal noted that the applicant had not made a protection claim until April 2014, some 6½ years later. The applicant replied that he had come to Australia on a Section 457 Visa and thought he could get permanent residence on that basis. He said he didn’t want to get a Protection Visa.
197. The Tribunal draws from this response that the applicant knew about Protection Visas but instead chose to pursue his goal of seeking permanent residency pursuant to his Work Visa.
198. The Tribunal noted that the Section 457 Visa expired in 2011. It asked the applicant why he didn’t apply for the Protection Visa then. The Tribunal noted that the applicant elected to pursue a process of appeals against a decision to reject his claim for a new Section 457 Visa.
199. The applicant again replied that he believed he could get it done on the jobs basis. He added that he didn’t want to disclose his story.
200. The Tribunal explained at length to the applicant that it was entitled to consider the length of time it took for the applicant to make protection claims in assessing whether the Tribunal considered the claims to be genuine. It expressed to the applicant it had the gravest concerns about the time the applicant had taken to make a Protection Visa application, particularly in light of the nature of the claims that he made, being the victim of an alleged assault from Sikhs in 2007 and the further assault upon him in August 2009.
201. The applicant continued to respond that he believed he could get permanent residency pursuant to his Work Visa applications.
202. The Tribunal noted that the applicant had returned to India in 2009 despite his alleged fears emanating from an assault in 2007. Further, the applicant had told the Tribunal that his brothers had advised him that it was unsafe for him to return to India. The Tribunal asked the applicant again why he didn’t apply for a Protection Visa upon his return to Australian in 2009.
203. The applicant again replied that he thought the Section 457 route would work.
204. The Tribunal had suggested to the applicant that he only applied for the Protection Visa as he had no other option, as all his appeal rights pursuant to the Work Visas had been exhausted and that a Protection Visa was his last resort. The applicant replied that he had no other option, but that he feared for his safety and the safety of his family.
205. The Tribunal asked the applicant why he would return to India in 2009, and to the very location where the claimed assault in 2007 took place.
206. The Tribunal again stated to the applicant that it might consider that his claims weren’t genuine if he was prepared to return to that same place given that he maintained that bad things were happening to members and supporters of the DSS and that his brothers had advised him that it was dangerous.
207. The applicant replied that his experience in 2007 was that which all followers of the DSS had, which was that everyone at the congregation on that day was attacked. He said his children were in a bad way and he restated that his brothers said it should be okay to return if he stayed inside the house.
208. The Tribunal formed the view that the applicant was playing down the seriousness of the assault in 2007.
209. To this end, the Tribunal asked the applicant when his fear of harm actually arose. Was it in 2007 at the time of the congregation being attacked or was it in 2009 when he was purportedly attacked personally?
210. The applicant’s response was that he thought he was in danger in 2007, but not as much as he was in 2009. He said he didn’t think his life was in danger in 2007.
211. The Tribunal considered this to be consistent with the fact that his family didn’t come to Australia until September 2010.
212. The Tribunal noted that the applicant’s evidence took a curious diversion into the circumstances in which he found himself working pursuant to his Section 457 Visa in Australia. The applicant made the claim that for 2½ years, he had been locked in a factory shed and had not been allowed out. He said he had not been provided with a key to the factory and he made the further claim that he had not been paid for four years. He provided details of the location of the place that he was working
213. The Tribunal noted that no claim of this event or circumstances had ever been made prior to this hearing. The Tribunal asked the applicant whether he had made a complaint with Fair Work Australia. The applicant replied he had, but that the case had become “lost”. Later in evidence, the Tribunal asked the applicant’s wife about the nature of the complaint made. She said that a complaint had been made in 2013.
214. The Tribunal asked the applicant about whether he had made any complaint about this experience during the appeal process relating to his Work Visa, the Tribunal noting that he had previously been before the Tribunal in relation to his 457 Visa. The applicant replied that the Tribunal probably wouldn’t find reference to it in that previous hearing as he said nobody else knew about it and therefore he had no evidence of it. The Tribunal noted, however, that the applicant was prepared to talk about it now and pointed out that the appeal about his work visa was the obvious place to raise such a complaint – it going to his defence or otherwise of why he had a visa cancelled or denied.
215. The Tribunal stated to the applicant that, again, it had the gravest concerns about this claim, given that he claimed to have been locked up for 2½ years and had never raised the matter before. Furthermore, the Tribunal noted that the applicant had apparently gone and lived voluntarily with the owner and his family in his home. That suggested to the Tribunal that the applicant was in no way aggrieved at having been locked up for 2½ years and not being paid for four years.
216. This evidence also caused the Tribunal to have the gravest concerns about the credibility of the applicant and the applicant’s claims.
217. In summary, given that the applicant:
     • Had waited 6½ years after his arrival in Australia to make a Protection Visa Application;
     • Had not made a Protection Visa Application after his return to Australia in 2009 following his claim of having been shot and being left for dead;
     • Had not made a Protection Visa Application upon the expiry of his Section 457 Visa, but rather elected to pursue an appeal process in relation to that Work Visa;
     • Chose to return to India in 2009 despite his claim of an assault upon him in 2007 and in the face of advice from his brothers that it would be dangerous for him to do so;
     • Had returned not only to India, but to the very location of the alleged assault in 2007;
     • Had introduced new evidence about having been locked up for 2½ years in the place of his employment and not having been paid for four years and to have not raised that at any time prior to this hearing, including with the Delegate and with the previous Tribunal;

the Tribunal finds itself having the most serious doubts about the credibility of the applicant’s claims.

218. Notwithstanding the credibility concerns the Tribunal has about the applicant and his claims, the Tribunal is prepared to accept the following:
     • The applicant was a follower of DSS prior to leaving India;
     • The family, with the applicant, sometimes attended DSS Ashrams at Salabatpura and Sirsa;
     • The applicant worked as [an Occupation 1] in Mohali;
     • The applicant lived between Mohali and Barnala;
     • The applicant would make regular trips from Mohali to Barnala to visit his family and stay for four or five days at a time.
219. The applicant claimed that he was assaulted by Sikhs at the Ashram in Salabatpura in August 2007.
220. The Tribunal could not find any Country Information relating to this attack in August 2007. There is much Country Information relating to days of protests between DSS followers and Sikhs that took place in and around Bhatinda which was in the heart of Punjabs Malwa.
221. The Tribunal also notes that the claimed attack took place at the Salabatpura Ashram which is the main DSS Ashram in the Punjab and was the Ashram at which the DSS leader is accused of dressing at the tenth Sikh Guru which caused the tension between Sikhs and DSS members. Like the previous Tribunal, this Tribunal is of the view that had there been an attack of the magnitude that the applicant claims at the main DSS Ashram and at the very place where the tension between the Sikhs and DSS members originated, then it would most certainly have been widely reported in the Indian media. Such an attack at an Ashram is a very different thing to a protest in which the DSS followers participate in the violence.
222. On the applicant’s own admission, he states that he didn’t think his life was in danger in 2007. Further, on the applicant’s evidence, he was prepared to return to the very location of the alleged attack when he returned to India in 2009.
223. For all of these reasons, including the Tribunal’s general credibility concerns, the Tribunal does not accept that the primary applicant was attacked by Sikhs or anyone else at the Ashram in Salabatpura in August 2007.
224. The applicant claimed that during his visit to India in 2009, and on the only occasion of him leaving the house, he was stopped by, and had petrol stolen by, men who were planning to execute a DSS leader in Salabatpura that same evening.
225. The applicant claimed that on the one occasion that he left his house (during the three months he was in India), to visit an aunt, he was held-up by four or five men demanding petrol from him. Whilst he was providing that petrol, the men openly discussed their plan to kill a DSS leader who was travelling to the town that day. The applicant had previously produced a media article outlining the plot and how it had been thwarted by men who had run out of fuel. He claimed that he was the one who gave the men the fuel.
226. The Tribunal had discussed with the applicant what an incredible set of circumstances it was that placed him at the centre of that media story. Though the Tribunal noted that the applicant’s role had not been disclosed in the media story and he certainly hadn’t been identified in the story. The media article outlined the events but said only that the attempted killing of the DSS leader was thwarted by the fact of a group of men having run out of petrol.
227. The Tribunal restated all of the circumstances in the context of what appeared to be a number of incredible coincidences. It noted specifically that the applicant had stated in his claims that he only went outside the home on one occasion. This ultimately was not the case as he later claimed to have been assaulted on another occasion when he had left the home. The Tribunal noted that on that one day that he did go out, he was picked up by a group of Sikhs demanding petrol. Whilst providing them petrol, he overhears a plot to kill a leader of the DSS that very evening. Noting how extraordinary it would be for the group of Sikhs to have such a discussion in front of him, he is simply pushed away and told to disappear. The applicant then goes to the village Head, who goes to the Police, who then managed to thwart the plot and the whole incident is reported by the media.
228. The Tribunal asked the applicant about his involvement in the identification process of the four men who had been arrested as a consequence of him reporting the plot that he had overhead. The Tribunal asked the applicant specifically whether he had been called upon to attend some sort of identification parade. He stated quite categorically in evidence that that was not the case and that it was the four men who assaulted him in August 2009 who had actually identified him and then set upon him.
229. This is in complete contrast to the claim made in his Protection Visa application wherein he said, “I reported the matter to Police through my village Heads. Police conducted raids and arrested some people. They were paraded before me during investigation. Recognised a few of them, who were the same men who stopped me on [date]/7/2009”.
230. The Tribunal considers this to be a very significant inconsistency, bearing in mind the applicant had stood by the accuracy of his claims that were contained in his Protection Visa Application.
231. Furthermore, this evidence is at odds with the newspaper article on which the applicant has relied as evidence of these events. The article submitted as evidence states that one of the men (of a gang of eight) was a lookout for the bus that [Mr A] was apparently on. None of the gang had ever sighted [Mr A] before. It goes on to report that four of the accused left on two motorcycles but midway, one of the motorcycles stopped due to fuel problems, so they missed their target. During the police investigation, the accused accepted that they couldn’t identify [Mr A] and as a result, the mission failed. The next part of the report was crucial. It reported that it was by chance that when police were searching for anti-Dera activists to ensure the peaceful bhog ceremony of a Dera follower, they were nabbed with weapons. There is simply no mention of the applicant’s involvement, or even the involvement of an informer.
232. The intrinsic part of this claim is what happened to the applicant next. He claims that [in] August 2009, he was shot by men who identified him as the person who had identified the four men who had stopped him for petrol and who were subsequently arrested.
233. The Tribunal had already mentioned to the applicant that he had said he had gone out of the house only once during his visit to India, yet it appeared he had actually gone out on a second occasion. The applicant dismissed this as merely going to a shop about 500m away. The Tribunal had also discussed with the applicant what an incredible coincidence it was that on only the second occasion that he should leave the house, he should be so identified and then be set upon and be shot.
234. The applicant clarified his evidence to say that the four men who assaulted him weren’t the same four men with whom he had had contact [in] July. They were different men altogether.
235. The applicant’s account of the event became even more incredible when he stated that the three or four men responsible for the [August] assault came up behind him and pushed him to the ground from behind. He said that after being pushed to the ground, the men put their boot on his neck whilst he was on the ground so that he could not properly see who was involved.
236. When the Tribunal asked the applicant to clarify how many men were involved, as he had on one occasion said two men and then later said three or four men, he stated that as he was on the ground with a boot on his neck, so he couldn’t be certain.
237. The Tribunal cannot understand how the men that attacked him [in] August actually identified him. He claimed that he was approached from behind. But he stated that these men were not the same men as the men who took his petrol [in] July. Yet, as he was pushed from behind to the ground and had a boot on his neck, he claims he could not be certain how many men there were, let alone who they were. And given that the men that assaulted him [in] August were different to the men that held him up [in] July, the Tribunal cannot find the link between how he was identified, given that he specifically said that he was not involved in any official identification process of the four men who held him up [in] July.
238. The circumstances of the actual assault and his shooting were uncertain. The applicant said he was hit from behind and that he was hit by a rod. He then claims that one of the men put his boot on his neck to hold him down. He claimed that he begged to be spared for the sake of his children. He claims that the men stated he would not be spared and that he was hit a second time. He claims that he then became unconscious and can’t remember anything else. There was some confusing evidence about the bullet ricocheting into his shoulder, but the Tribunal has put that to one side, as the representative quite rightly pointed out there was no ballistics report. Suggestions as to the bullet bouncing is clearly inconsistent with the applicant’s evidence that he was, at the time he was shot, unconscious.
239. The applicant’s evidence alternated in relation to what the men said to him. At first, he said they told him that he would not be spared as he was the cause of their friends being caught. Then the applicant said that the men told him that he would not be spared and that they would kill him. When asked again, the applicant said that the men told him that they won’t leave him because he got their men caught.
240. The Tribunal also found it incredible that despite being told that he would be killed, and despite the fact that the men were at point blank range with the applicant held on the ground by a boot on his neck, he was shot in the shoulder and was not killed. The x-ray evidence produced showed much shrapnel in the applicant’s shoulder area but a long way from his head or heart where one might expect a person about to be killed would be shot.
241. This evidence contrasted sharply with what he had told the previous Tribunal. The applicant told the previous Tribunal that he was standing outside near his house when he was approached by four or five men. He claimed that the men beat him severely with weapons. He said that one of the men shot him in his right side with a shotgun. He stated that he passed out after being shot.
242. This inconsistent evidence, together with the incredible nature of the circumstances by which he claimed to be involved on the one occasion that he left the house whilst in India (during three months), is so implausible as to be fanciful and far-fetched. Coupled with the grave credibility concerns the Tribunal has about the applicant and his claims, causes the Tribunal to totally reject the applicant’s claims as to how he came to be shot.
243. The Tribunal does accept that the applicant has been shot at some time as the x-ray evidence and the scars shown by the applicant to the Tribunal are irrefutable, but the Tribunal does not accept the applicant’s claims as to how he was shot. The applicant has only claimed he was shot for this reason, and in the absence of any evidence or claims as to an alternative reason for his being shot, the Tribunal finds that there will not be any future consequences.
244. The Tribunal has rejected the applicant’s claims that he was assaulted in 2007 at the Salabatpura Ashram, it has rejected his claims that he was held-up by men who took petrol from him and openly discussed a plot to kill a DSS leader in front of him. It rejects his claims that he reported anything to village leaders and that he was in any way involved in the arrest of any people purportedly involved in the conspiracy to kill the DSS leader.
245. The Tribunal has rejected the applicant’s claim that another group of men, not being the men who allegedly held him up [in] July, identified him and assaulted and shot him [in] August.
246. The Tribunal rejects his claims that he has been assaulted or shot by Sikhs or Sikh extremists.
247. The Tribunal does not accept that the applicant fears serious harm, or any harm from Sikhs, Sikh extremists or anyone else in India.
248. The Tribunal, in accepting that the applicant has been shot, acknowledges that something happened to cause him to be shot, but does not accept that he was shot in circumstances as claimed by the applicant.
249. In relation to the applicant’s claim of fearing persecution as a follower of the DSS, the Country Information referred to during the hearing and noted in this decision states that no sources have been located indicating that ordinary followers of DSS are targeted for harm by the dera’s opponents. No sources have been located indicating that people have been harmed while visiting dera property or for utilising services provided by DSS. Sources do indicate that DSS activists meetings and rallies were the subject of protests and some violence in the past, particularly in 2007. But those same sources note that such activists participated in the violence themselves.
250. There is no evidence to suggest that the applicant is an activist or attends activist meetings and rallies. The applicant has made no such claim.
251. In conclusion, the Tribunal is not satisfied that there is a real chance that the applicant will be at risk of serious harm by reason of his being a follower of the DSS, having been previously assaulted as a follower of the DSS, having been privy to a plot to kill a DSS leader, or having been attacked by Sikhs or Sikh extremists or for having identified the conspirators of an attack on a DSS leader if he returns to India now or in the reasonably foreseeable future.
252. The Tribunal is quite persuaded that the applicant’s claims have been manufactured to fit a particular media story and are totally lacking in credibility.

Cumulative findings:

253. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant, the Tribunal finds that there is no real chance that the applicant will suffer persecution on the grounds of his being a follower of DSS, having been privy to a plot to kill a DSS leader, or having been attacked by Sikhs or Sikh extremists, or for having identified the conspirators of an attack on the DSS leader or any other reason if he returns to India now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to India. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.

Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm.

254. The Tribunal has considered the applicant’s claims under complementary protection.
255. 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). In so doing the Tribunal 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, as it is defined in s.36(2A) and s.5(1).
256. In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to India now or in the reasonably foreseeable future. In MIAC v SZQRB, 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 the Refugee Convention definition.
257. Given the Tribunal’s findings above, it is satisfied that the applicant does not face a real chance of serious harm in India for reasons of his claimed being a follower of DSS, having been privy to a plot to kill a DSS leader, or having been attacked by Sikhs or Sikh extremists, or for having identified the conspirators of an attack on the DSS leader.
258. Having considered all of the applicants’ claims, individually and cumulatively, and all the evidence and submissions, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to India now or in the reasonably foreseeable future.
259. For the sake of completeness, the Tribunal considered whether the applicant might be able to relocate to another area in India to avoid any localised threat of harm.
260. The Tribunal had discussed with the applicant at the hearing that Country Information indicated that India was a very large country with a population of 1.2 billion people in some 27 million towns, cities and settlements and the largest eight cities have between 4-12 million people each. People had freedom of movement within those large cities. The Tribunal had discussed with the applicant that the Country Information would indicate that he could relocate within India and that as there was no unified national registration system for Indians and very limited sharing of information between Police Forces, the applicant could virtually disappear.
261. This Country Information was consistent with the applicant’s claims that he had returned to Mohali to avoid harm after the claimed attacks in 2007 and 2009 and that he was not harmed in Mohali. As the Country Information indicated, a lack of central registries and the difficulties Police have in tracking down individuals across the nation indicates that the chance or risk that anyone would be able to locate the applicant is remote.
262. The applicant can read, speak and write Punjabi, which is spoken by over 30 million Indians and is spoken in many of the major cities.
263. The applicant has significant experience working in India and in Australia as [an Occupation 1]. His Protection Visa Application states that he was gainfully employed as [an Occupation 1] in India prior to arriving in Australia and he was able to support his family in India through that employment.
264. The Country Information indicates that unemployment in India is low and the country is experiencing substantial economic growth.
265. The Tribunal does not accept that the applicant could not move to another part of India and that he could not obtain employment as [an Occupation 1] given his past work experience and which employment would be sufficient to support himself and his family.
266. The Tribunal notes the applicant’s claim to be unable to speak English. Notwithstanding this, he has been able to settle and work in Australia. The Tribunal notes also that applicant 4 was born in Australia and may not have had exposure to foreign languages. The Tribunal notes that applicant 3 and the applicant’s two teenage daughters speak English and Hindi in addition to Punjabi and that all would be capable of helping each other as they have done so in Australia.
267. Considering all of his individual circumstances and the Country Information, the Tribunal finds that it would be reasonable for the applicant to relocate to another area in India to avoid any localised threat of harm that the applicant believes he might face in the District of Barnala in Punjab.
268. The Tribunal also considered the applicant’s claims that he will have no money, that young girls are not safe in India and that he and his wife have health issues.
269. The Tribunal considered the evidence of applicant 3. During her evidence, she stated that they have many relatives still living in India. She stated that the applicant has [siblings] living in Barnala, a [sibling] living in Barnala and another [sibling] living in [location] and [another sibling] living in [location]. She added that she has a mother, a brother and a sister living in [location] in Punjab and [other siblings] living in [location].
270. The Tribunal considers that the applicant will have substantial family support if he returns to India.
271. Furthermore, the applicant produced no evidence, despite being invited to provide a further submission, as to the claim that young girls are not safe in India. The Tribunal again notes the extensive family network that the family has in India.
272. In relation to the health issues of the applicant and his wife that the applicant claims, no evidence was furnished in relation to the nature of the health issues and no evidence was furnished as to how those issues could not be addressed or handled in India. The only evidence proffered before the hearing was:
     • a letter from a surgeon advising of a surgery to be performed on applicant 3 and that she would be unfit for duties for six weeks from [November] 2018.
     • a patient health summary for applicant 2 detailing current medications, all being readily available puffers and capsules.
     • a general report from the applicant’s doctor to the previous Tribunal (dated 2 March 2016) which spoke of the applicant having had three surgeries and requiring regular review.

The Tribunal received neither additional updated reports nor any submission as to how the applicants may be impacted by a return to India.

273. Country Information from the DFAT Report indicates that since 2017, the Indian government has turned its attention to increasing health spending, improving the availability and efficiency of services and allowing individual States (which are responsible for healthcare delivery) more autonomy to implement health programs. More recently, the government launched a revamped national insurance scheme and a program to improve the primary healthcare system, as part of a commitment to move India towards universal healthcare.
274. Finally, in relation to applicant 4, Country Information indicates that children aged 6 to 14 are entitled to free and compulsory education under the Constitution. The student enrolment rate at primary level is 96.9%.
275. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to India now or in the reasonably foreseeable future.
276. Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.

Conclusion: Refugee Criterion

277. Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group). His fear of persecution is not well-founded as required by s.5J of the Act and therefore he is not a refugee within the meaning of s.5H.

Conclusion: Complementary Protection

278. Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to India that there is a real risk that he will suffer significant harm.

Overall conclusion:

279. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. The applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted visas.

DECISION

280. The Tribunal affirms the decision not to grant the applicants Protection visas.

MINISTERIAL INTERVENTION

281. The Tribunal was impressed by the evidence of the applicant’s teenage daughters and was impressed by their obvious achievements in education. The Tribunal is in no doubt that the applicant’s two teenage daughters would make a contribution to Australia. The Tribunal urges the representative to make due inquiry about seeking ministerial intervention on behalf of the family. Furthermore, the Tribunal would urge the representative to consider applications for student visas, given the claims by the daughters to have received scholarships to universities.

Michael Hawkins
Member

---

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