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Tribunal: Member Alison Murphy

A delegate of the Minister for Immigration and Border Protection refused the applicant a Protection visa. On 8 March 2018, the Administrative Appeals Tribunal affirmed the decision.  

The applicant was born in India and came to Australia to join his wife, who was in Australia on a temporary visa. The applicant claimed that after his arrival his wife falsely accused him of performing a particular criminal act on her. The applicant gave evidence of marital separation and that he had an upcoming criminal trial scheduled for August 2018. The applicant claimed to fear harm if returned to India on the basis of his religious beliefs. In particular, he claimed to be a long time devotee of Dera Sacha Sauda (DSS), a spiritual organisation led by the Guru, Gurmeet Ram Rahim Singh. The applicant claimed that circumstances for DSS followers had changed following the conviction and jailing of Guru Gurmeet Ram Rahim Singh on sexual misconduct charges in 2017. Since the Guru’s conviction and jailing, Indian authorities and others were targeting DSS members and supporters. He claimed that he would be targeted for harm if returned to India as a DSS devotee and follower. He claimed that since the Guru’s arrest, people from Indian political parties and the Indian authorities had repeatedly come to his family home looking for him and threatening his parents.

Section 36 of the Migration Act 1958 (the Act) sets out the criteria to be satisfied for a Protection visa. Broadly, it requires the applicant to be a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion or on other ‘complementary protection’ grounds. In basic terms, this arises when a person is found to have a ‘well-founded fear of persecution’ or there is a ‘real risk of significant harm,’ respectively.

The Tribunal’s decision mainly concerned the credibility of the applicant. The Tribunal held a number of concerns about the evidence the applicant provided about his involvement with DSS and the contents of the documents he submitted in support of his claims. The Tribunal highlighted numerous inconsistencies and put them to the applicant. The Tribunal gave the applicant the benefit of the doubt and accepted his explanations for the apparent inconsistencies. The Tribunal accepted the applicant’s claimed involvement in DSS and that he would resume his activities with the organisation if he returned to India.

The Tribunal did not accept the applicant’s claims that he or his family had been threatened because of his work with DSS. There were a number of inconsistencies in his evidence about the threats he and his family had received in India. The Tribunal found the applicant’s evidence in this regard was vague and unpersuasive. The applicant’s claims that the Indian authorities were targeting or failing to protect DSS supporters were inconsistent with the independent sources that were before the Tribunal. The Tribunal also stated that in a different hearing before the Tribunal in October 2017, the applicant did not suggest at any time in his evidence that he or his family were experiencing difficulties in India because of his involvement in DSS or that he feared harm for any reason if returned to India.

For those reasons, the Tribunal did not accept there to be a real chance that the applicant would suffer serious harm from the Punjabi police, any other arm of the Indian authorities, extremist groups or any other group of persons if he returned to India. The Tribunal thus concluded the applicant did not have a well-founded fear of persecution for any reason claimed if he returned to India. For the same reasons the Tribunal did not accept there to be a real risk that the applicant would face significant harm if returned to India. Therefore the applicant did not satisfy the ‘refugee’ criterion or the ‘complementary protection’ criterion.

Read the full written decision on Austlii.