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1206981 [2012] RRTA 1067 (30 November 2012)
DECISION RECORD
RRT CASE NUMBER: 1206981
DIAC REFERENCE(S): CLF2012/20521
COUNTRY OF REFERENCE: India
TRIBUNAL MEMBER: Steve Georgiadis
DATE: 30 November 2012
PLACE OF DECISION: Adelaide
DECISION: The Tribunal affirms the decision not to grant the applicant a Protection (Class XA) visa.
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 to refuse to grant the applicant a Protection (Class XA) visa under s.65 of the Migration Act 1958 (the Act).
2. The applicant, who claims to be a citizen of India, applied to the Department of Immigration for the visa on [date deleted under s.431(2) of the Migration Act 1958 as this information may identify the applicant] January 2012.
3. The delegate refused to grant the visa [in] April 2012, and the applicant applied to the Tribunal for review of that decision.
RELEVANT LAW
4. Under s.65(1) a visa may be granted only if the decision maker is satisfied that the prescribed criteria for the visa have been satisfied. The criteria for a protection visa are set out in s.36 of the Act and Part 866 of 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 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), or on other ‘complementary protection’ grounds, or is a member of the same family unit as a person in respect of whom Australia has protection obligations under s.36(2) and that person holds a protection visa.
Refugee criterion
5. 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 to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention.
6. Australia is a party to the Refugees Convention and generally speaking, has protection obligations to 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.
7. The High Court has considered this definition in a number of cases, notably Chan Yee Kin v MIEA (1989) 169 CLR 379, Applicant A v MIEA (1997) 190 CLR 225, MIEA v Guo (1997) 191 CLR 559, Chen Shi Hai v MIMA (2000) 201 CLR 293, MIMA v Haji Ibrahim (2000) 204 CLR 1, MIMA v Khawar (2002) 210 CLR 1, MIMA v Respondents S152/2003 (2004) 222 CLR 1, Applicant S v MIMA (2004) 217 CLR 387, Appellant
S395/2002 v MIMA (2003) 216 CLR 473, SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51.
8. 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.
9. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
10. 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)). The expression ‘serious harm’ includes, for example, a threat to life or liberty, significant physical harassment or ill-treatment, or significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood, where such hardship or denial threatens the applicant’s capacity to subsist: 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.
11. 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.
12. 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: s91R(1)(a) of the Act.
13. 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 fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or based on mere speculation. 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.
14. 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.
15. 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.
Complementary protection criterion
16. 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 to 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’).
17. ‘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.
18. 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.
CLAIMS AND EVIDENCE
19. The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources.
20. The applicant is [age deleted: s.431(2)]. His date of birth is [date deleted: s.431(2)]. He was born in India and is a Sikh from [District 1] in northern India in the state of Punjab. He was married but divorced [in] January 2012.
21. He arrived in Australia [in] June 2008 on and Indian passport [number deleted: s.431(2)] as a holder of a [Student visa], which expired [in] March 2012.
22. [In] December 2011 the applicant lodged an application for a Protection (Class XA) visa, but this was deemed invalid under s.46(2a) of the Act as he failed to provide requisite personal identifiers. [In] January 2012 he was sent a Notice of Intent to Cancel his student visa because he was no longer married. [In] February 2012 he lodged his application for a Protection (Class XA) visa.
23. The applicant appeared before the Tribunal [in] August 2012 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
24. Following the hearing [in] August 2012, the claimant was given leave to lodge with the Tribunal, not later than seven days after the hearing, documentary evidence that he was now divorced. [In] August 2012 (within the time allowed) the Tribunal received from the applicant a Divorce Order issued by the Federal Magistrates Court (FMC) of Australia relating to the marriage between [the applicant] and [Ms A] named in the Divorce Order as husband and wife.
25. The Divorce Order sets out the findings of the FMC that:
a. The marriage is proved.
b. The applicant (or respondent) husband/wife (or both, parties) was/were at all material times domiciled in/a citizen of/ordinarily resident in Australia and has been so resident for 1 year immediately preceding the date on which the application was filed.
c. The ground for the application for a divorce order - namely, the marriage has broken down irretrievably - is proved.
26. The Court by order also declared that it is satisfied that a child of the marriage, [name and date of birth deleted: s.431(2)], has not attained the age of 18 years.
27. The Divorce Order was ordered to take effect, and thereby terminated the marriage between the applicant and [Ms A], [in] 2012.
28. The applicant confirmed at the hearing that he had left Australia and returned to India on three occasions since first arriving [in] June 2008. He left Australia [in] July 2008 and returned from India [in] July 2008. He again left for India [in] March 2011 and returned to Australia [in] May 2011. Most recently he departed Australia [in] October 2011 to India and returned to Australia [in] October 2011.
29. The applicant trained in India as a [mechanic] and started working after he finished school. In India he worked as a [mechanic].
30. He states he was earning “good money” as [mechanic] and had a great life until, [in] July 2007 he was attacked by three Akali Dal party members. He claims this was a politically motivated attack ordered by the Akali Dal’s [Mr B], due to the applicant’s involvement with the rival Congress party relating to the elections held [in] February 2007.
31. The applicant claims he was an active member of the Congress party and that all his family supported the Congress party candidates including his brothers. He claims he campaigned for the Congress party candidate, [name deleted: s.431(2)], in the February 2007 elections. He claims that the Akali Dal warned him during that campaign and asked him to stop campaigning for the Congress party.
32. He claims that the Akali Dal physically attacked him and his brothers but that this did not occur until four months after the election so that it did not create an unfavourable
image for the party after the election. He claims that as a result of this attack he spent several days in hospital. He told the Tribunal that his injuries consisted of a [injuries deleted: s.431(2)] which required stitches and pharmaceuticals to avoid an infection.
33. The applicant claims that he was warned not to make a police complaint regarding this attack but that despite this, he proceeded to do so, filing a complaint under the Indian Penal Code.
34. The applicant claims that after his family filed a case against gang leader of the Akali Dal, [Mr C] for the above attack, members of the Akali Dal tried to kill him and his other brothers. He claims that those who threatened him demanded that he withdraw the case against them. He did not do so but left India claiming that he did this to avoid further attacks on him.
35. At the hearing the applicant told the Tribunal that during the attack, one of the persons who attacked him and was intoxicated and was injured by his own weapon. He said that the attack was politically motivated against him and also his brothers. When asked who it was that attacked him he said it was the gang leader, [Mr C] acting on behalf the Akali Dal, because the applicant and his brothers were in support of the Congress party.
36. When asked at the hearing for particulars of the support given to the Congress party the applicant’s response was that he was a youth leader and would place posters and flags around his [workshop] where he was employed and would generally lobby in support of the Congress party. This included making posters and distributing messages.
37. At the hearing it was noted that the attack occurred in July 2007 and yet the applicant arrived in Australia in June 2008. When questioned about the delay in leaving, the applicant’s response was that during the intervening 11 months attempts were made to try to resolve the situation amicably, through mediation, involving the uncle and members of the leadership of the Akali Dal. The applicant said that they “started to look for other ways” to resolve the dispute but ultimately his family determined that it would be better for him to move to another country to avoid any ongoing problems and it was at this time that he decided to come to Australia. During that time he did not reside at his usual residence or continue to work at the [workshop] where he was employed, because of the fear of attack. He said that instead, he lived with an uncle in another area of [District 1] in Punjab state, up until the time he came to Australia.
38. The applicant said that he consulted a migration agent on how to best make arrangements to travel abroad and was advised to make an application to study in Australia. As his wife had been accepted as a student in Australia the applicant was able to travel to Australia as a dependent on his wife’s Class TU subclass 573 visa.
39. The applicant claims that he returned to India [in] July 2008 to be present to give evidence at the proceedings regarding the above assault. He said that police in India required his attendance to provide evidence in the case. He said that the police had incriminating evidence against one of his brothers and therefore he want to cooperate with the police request. He claims that he had to be very careful on the way to court as the accused would not have known that he was present for the hearing. He told the Tribunal at the hearing that his brother and mother also attended the Court to give evidence in the case. He said the case ran for six days and that he was in India for a total of about 10 days. He said that the outcome was that the case against the gang
leader, [Mr C] was ultimately not successful. The accused was acquitted of the charges framed against him “for want of evidence” as set out in the judgement and Orders of Magistrate [District 1], pronounced [in mid] 2008, which are attached to the departmental file.
40. The applicant claims that the night following the end of the court hearing members of the Akali Dal attended his home in an attempt to kill him. He claims that as he suspected this might occur he did not return home that evening but instead stayed at a relative’s house until he left for Australia [in] July 2008.
41. When the applicant was asked at the hearing why he would take the risk in the circumstances and return to India to give evidence against those he feared, he responded that he did this because his brother was involved in the case and he wanted to protect his brother and mother. He confirmed that there was no case made against himself, or his brother or mother. He said his parents still reside in Punjab state but that his brothers are in Australia.
42. The applicant had returned to India on two further occasions and managed to return to Australia unharmed He claims that every time he returned to India he did not go back to his home but instead stayed at different places where he considered it safe, to escape detection.
43. At the hearing the applicant clarified that he returned to India [in] March 2011 at which time he stayed for approximately two and a half months before returning to Australia [in] May 2011. When asked at the hearing about the length of his stay in India in circumstances where he feared persecution, the applicant responded “I feel good over there and decided to live there.” When questioned about why he returned to Australia [in] May 2011, he explained that he returned to sell his car and other belongings and to close his bank accounts.
44. Since his return to Australia, the applicant has separated from his wife. His former spouse and son continue to reside in Australia. He travelled to India again [in] October 2011. On that occasion he states he planned to stay permanently in India. He claims that when this became evident to the Akali Dal, arrangements were again made to attempt to kill him. At the hearing he told the Tribunal that he was recognised one day in his car by the gang leader, [Mr C] and his friends, who attempted to stop the applicant’s car. The applicant said he felt insecure and sped off leaving the area and went to stay with his uncle with whom he had stayed before in the same district in Punjab state. He said that on that occasion the gang went to his parent’s house with motorcycles and started making enquiries in the area, not directly with his parents, but with neighbours and also at the [workshop] which is five kilometres away from his parent’s house. He claims that as a result of this he felt unsafe in India and therefore decided to again return to Australia. He returned to Australia [in] October 2011.
45. The applicant claims that the Akali Dal and [Mr B] killed his own brother who was standing for a position in the same constituency and is now seeking to blame others, including the applicant, for this murder.
46. The applicant claims that he is very worried about his life if he returns to India and that he was very fortunate to be able to return to Australia on the last occasion as the Akali Dal are looking for him “everywhere”.
47. The applicant claims that he is not afforded protection by the government authorities in India as when he discussed his safety concerns with them he was denied any protection. He claims that the police in India are corrupt and cannot protect the population there. He gave examples of people in India who “go missing” and made general reference to information on the internet regarding this.
48. The applicant was asked further about whether the state authorities could offer him protection against the harm which he alleges. The Tribunal noted that the applicant had approached the local police about the physical attack against him and made a report about this. The Tribunal also noted that the claimant asked the police to prosecute the matter and indeed he (together with his brother and mother) filed a complaint in India for breach of the Criminal Code for the matter to be contested in the court. Further, it was noted that the applicant was prepared to give evidence in the proceedings (for which purpose he travelled from Australia to India) to secure a conviction.
49. At the hearing, the applicant was provided with independent country information and invited to comment on information that state authorities were providing a high level of security to political leaders in Punjab (his own state) and that they routinely intervene in disputes at political gatherings. Information found indicated that in the wake of the incidents of May 2007, police in Punjab arrested and pre-emptively detained persons perceived to be organising violent protests. The article published on the Times of India website on 11 February 2008 indicated that police had neutralised a planned demonstration against the Dera Sacha Sauda (who was politically aligned with the Congress party against the Akali Dal) by pre-emptively arresting 150 members of the Khalsa Action Committee, and deploying police to provide security at all Dera Sacha Sauda premises in the Malwa region (Garg, Balwant 2008, Chetna March Grounded, Times of India website, 11 February http://timesofindia.indiatimes.com/Cities/Chandigarh/Chetna_march_grounded/articles how/2772144.cms - Accessed 12 March 2008 ). The applicant’s response reiterated that the police in Punjab state were corrupt and ineffective.
50. The Tribunal asked the applicant why he could not relocate to another part of India to escape from the problems he was facing in his local area. In respect of this, the Tribunal noted, the applicant’s own comments that he is a “good mechanic” and that he has transferrable skills as a mechanic. The Tribunal noted that he was able to work in this field in Australia where he said he carried out [activities deleted: s.431(2)].
51. The Tribunal also noted that the claimant was resourceful and able to travel to Australia on three occasions, returning to India twice since his first departure, and was able to subsist and remain safe. On his own evidence, his parents were supporting him by way of income. There was nothing to suggest that this income support could not continue anywhere in India if he was to relocate.
52. The applicant was questioned about relocating perhaps to the southern, western or eastern areas of India where there was less risk of harm and fewer conflicts relating his political activism as a member of the Congress party. The applicant was asked specifically whether he could relocate to a different area in India, perhaps staying with his cousin who lives approximately 50 kilometres away (in [another] district which is one of the 22 districts in the state of Punjab) where he previously sought refuge with his cousin and considers it to be safe.
53. In response, the applicant said that he does not wish “to again face this trouble in my [his] life”. When asked if there was any reason why he could not perform work as a mechanic outside of his own immediate area and that this could provide subsistence and a reasonable living given that he was making “good money” before in this occupation, the applicant responded that he had no idea what would happen to him in a different area but that in any case his son was in Australia together with his ex-wife. He said that he wanted to provide for his son.
54. Towards the end of the hearing the applicant explained that, in any case, he did not wish to live in Australia permanently but that he wanted to “have some time to live here peacefully.” He indicated that he just wanted to have a little more time in Australia before he returns to India.
Country Information
State politics in Punjab
55. The website of the Government of Punjab outlines the structures of government in place in the state:
56. The government and administration in Punjab are organized on the same lines as in other states of India. The legislative wing of the State is the House of People or the Vidhan Sabha. Punjab has an unicameral legislature, having abolished the upper house, the Vidhan Parishad in the ‘60s. The chief minister and members of his cabinet are members of the legislature and they are at the top of the executive wing of the government and are accountable to the legislature. As elsewhere, the MLAs, or Members of the Legislative Assembly, wield considerable influence over policy- making and implementation, more so because they are members of District level Planning and Grievance Committees set up by the government in each district.
Local government
57. The system of local government consists of Municipal Corporations, Municipalities, and Notified Area Committees in urban areas. Their main source of revenue is octroi and their main administrative functions are conservancy, local health laws, and approving building plans in their local jurisdiction, In rural areas, there is the usual set up of village panchayats, panchayat samitis and zilla parishads though, in practice, they do not wield administrative or legal powers of any consequence. Unlike in states such as Karnataka or Maharashtra, local government cannot be said to be highly developed in Punjab.
The judiciary
58. The judiciary and the executive are separated in Punjab as in other states in the country. However, the state shares a common High Court with the state of Haryana and the Union Territory of Chandigarh (‘Government – Overview’ (undated), Government of Punjab website http://punjabgovt.nic.in/GOVERNMENT/GOVERNMENT1.HTM – Accessed 4 March 2008).
59. In recent years, victories in state elections (Legislative Assembly) have alternated between the Congress party (more formally known as the Indian National Congress or INC and also known as Congress I) on one side, and the combine of the Bharatiya Janata Party (BJP) and Shiromani Akali Dal (SAD) on the other side. The UK Home Office Country of Information Report on India provides a brief background to these parties:
Akali Dal also termed as Shiromani Akali Dal
60. A Sikh party, formed in 1920 and demanding an independent Sikh state. This demand has been dropped since the Punjab peace accord of 1985. Formed an alliance with the BJP in 1997, but lost the Punjab state elections in 2002. Strong performance in the 2004 elections, winning 10 out of 13 seats in Punjab. It is a major player in the northern state of Punjab…
…Bharatiya Janata Party (Indian People’s Party) (BJP)
61. ..The BJP was formed in 1980 from the former Bharatiya Jana Sangh, founded in 1951 as the political wing of the extremist Hindu nationalist organisation Rashtriya Swayamsevak Sangh (RSS), responsible for outbreaks of communal violence in which a mosque was destroyed at Ayodhya. The BJP and its allies (NDA) were routed in a surprise defeat in the 2004 elections. The former PM Atal Behari Vajpayee is viewed as the leading moderate while former deputy PM and current BJP parliamentary leader L.K. Advani fronts the hardline faction. [5h] [66]
…Indian National Congress (INC)
62. Party of Indian independence, then of Government for 45 of the following 50 years under Nehru, his daughter Indira Gandhi (Congress I) and grandson Rajiv Gandhi. Had support throughout India, but suffered massive losses in the North and partially in the West in 1998 and lost the confidence of traditional voters such as Muslims and scheduled castes. Sonia Gandhi, widow of Rajiv Gandhi, took over as President of Congress (I) in April 1998. In December 2003, Congress began actively seeking alliance partners. The 2004 national elections ended governance by the BJP and brought in a new left-leaning coalition Government, the United Progressive Alliance, led by Prime Minister Manmohan Singh after Sonia Gandhi declined the post. The INC with its allies won 217 seats (35.8% of the votes) in the parliamentary election. [66] (UK Home Office 2008, Country of Origin Information Report: India , 31 January, pp. 15-16 http://www.homeoffice.gov.uk/rds/pdfs08/india-310108.doc – Accessed 1 February 2008 – for reports on past elections, and for a more detailed background on the political situation in Punjab in recent years see Luce, E. 2002, ‘Asia-Pacific – Regional polls in India set to weaken grip of BJP’, Financial Times, 15 February; Election Commission of India 2002, Statistical Report on General Election, 2002, to the Legislative Assembly of Punjab, Election Commission of India website http://www.eci.gov.in/archive/se2002/Stat_rep_2002_PB.pdf – Accessed 29 May 2003 – ‘Congress gets a simple majority in Punjab’ 2002, Rediff , 24 February http://www.rediff.com/election/2002/feb/24_pun_agen_rep_20.htm – Accessed 5 August 2004).
63. Punjab held state elections in February 2007, with the results showing victory for the Shiromani Akali Dal – Bharatiya Janata Party (SAD-BJP) combine. In the aftermath of
the election, SAD leader Parkash Singh Badal was sworn in as Punjab Chief Minister for the fourth time, after having served three previous terms in 1970–1971, 1977–1980, and 1997–2002. Rediff reported:
64. Akali Dal leader Parkash Singh Badal was sworn in as Punjab Chief Minister for a record fourth time.
65. Punjab Governor S F Rodrigues administered the oath of office and secrecy to Badal at a ceremony held at PCA stadium in Mohali.
66. He will head the SAD-BJP alliance government, thus ending the five-year rule of Amarinder Singh-led Congress government (‘Badal sworn in as Punjab CM’ 2007, Rediff , http://in.rediff.com/news/2007/mar/02punpoll.htm – Accessed 9 July 2007 – see also Anand, A. K. 2007, ‘Badal prepares for fourth term as CM’, Rediff , 28 February http://in.rediff.com/news/2007/feb/28punpoll6.htm – Accessed 9 July 2007; UK Home Office 2008, Country of Origin Information Report: India , 31 January, pp. 15-16 http://www.homeoffice.gov.uk/rds/pdfs08/india-310108.doc – Accessed 1 February 2008).
67. Municipal elections are also held in Punjab at various times, Zee News reported on elections in August 2007:
68. The three main opposition parties in Punjab – Congress, CPI and CPM – demanded fresh elections in all the four municipal corporations in the state in view of what they described as large scale irregularities, including “mass booth capturing and rigging”.
The opposition parties in a memorandum submitted to Governor S F Rodrigues here demanded that the MC poll in Amritsar, Jalandhar, Patiala and Ludhiana be declared as “null and void.”
“The government of Punjab be dismissed for its undemocratic and unconstitutional act and the police and civil officers involved be reprimanded for their conduct in these elections,” the joint memorandum signed by the leaders of the three parties said.
The memorandum said, “the entire election process from day one has been conducted in a way to give impression to the general public that the election is being contested by the police. The Congress candidates in many cases, particularly in paTIala [sic] were made to withdraw with threats [of] implicating them in false cases” (‘Opposition demands fresh MC poll in Punjab’ 2007, Zee News , 10 August http://www.zeenews.com/znnew/articles.asp?aid=388081&sid=REG&sname=&news=Oppositi on%20demands%20fresh%20MC%20poll%20in%20Punjab – Accessed 6 September 2007 – for a report on municipal protests in previous years see ‘MC elections record heavy polling’ 2003, The Tribune , 2 March http://www.tribuneindia.com/2003/20030303/punjab1.htm – Accessed 5 March 2008
Political conflict since 2007 state elections
69. Several sources, such as the BBC News , the UK Home Office and the South Asia Terrorism Portal, state that in recent years the political situation in Punjab has been relatively peaceful compared with the past. Nonetheless, there have still been reports of conflict between the major parties (Biswas, S. 2005, ‘The fading of Sikh militancy’, 16
March http://news.bbc.co.uk/2/hi/south_asia/3733271.stm – Accessed 10 March 2008 – UK Home Office 2008, Country of Origin Information Report: India , 31 January, pp. 15-16 http://www.homeoffice.gov.uk/rds/pdfs08/india-310108.doc – Accessed 1 February 2008 – ‘Punjab Assessment – Year 2008’ 2008, South Asia Terrorism Portal website http://www.satp.org/satporgtp/countries/india/states/punjab/index.html – Accessed 4 March 2008).
70. The South Asia Terrorism Portal’s ‘Punjab Assessment’ for 2008 suggested that Punjab generally “remained peaceful” and “free of major political violence” in 2007:
71. The north-west Indian State of Punjab remained peaceful through 2007, though it was marred by a single and significant terrorist strike at Ludhiana in October. This is the 14th consecutive year the State has remained relatively free of major political violence after the widespread terrorist-secessionist movement for ‘Khalistan’ was comprehensively defeated in 1993 (‘Punjab Assessment – Year 2008’ 2008, South Asia Terrorism Portal website http://www.satp.org/satporgtp/countries/india/states/punjab/index.html – Accessed 4 March 2008).
72. On the other hand, there were a number of reports of political conflict between the major political parties in Punjab throughout 2007. The Tribune reported on pre-election violence in Beas during March 2007:
73. Jasbir Singh Dimpa and Manjinder Singh Kang, Congress and SAD candidates, have started door-to-door campaigning for the coming election to be held on March 11.
74. The election was postponed due to violence between supporters of Congress and SAD that led to the killing of one Akali supporter on January 29.
75. However, the people of the area seemed less interested as the government has been formed by the SAD-BJP. But the two political parties was in no mood to leave any stone unturned for this constituency as political bigwigs were scheduled to arrive in the town to support their candidates (Walia, V. & Bumbroo, S. 2007, ‘Dimpa’s bail plea gone; campaign on’, The Tribune , 7 March http://www.tribuneindia.com/2007/20070307/punjab1.htm – Accessed 7 March 2008).
76. Another article in The Tribune from August 2007 commented on “Widespread violence, alleged rigging, booth-capturing and firing” during the municipal elections Amritsar:
77. Widespread violence, alleged rigging, booth-capturing and firing today marred the civic body elections even as supporters of SAD and Congress fought pitched battles in various parts of the Holy City that left more than three dozen persons injured, including mayor Sunil Dutti.
78. Violence despite the presence of a heavy posse of policemen, which is reminiscent of the Bihar poll scene, is unprecedented in corporation elections here.
79. The police picked up Ashwani Pappu, senior Congress leader, when he went to cast his vote in the polling station. The agitating Congress workers then gheraoed C Division where Ashwani Kumar was taken. An old man, Kashmiri Lal who had levelled serious
charges against Baxi Ram Arora, former chairman of the Improvement Trust, was thrashed by BJP workers on Lawrence Road. The ruling party leaders did not spare even crew of electronic media.
80. The local administration had allegedly failed to stop armed outsiders from entering the city.
81. Panic gripped ward number 5 when some workers of the ruling party opened fire. In the melee that ensued, somebody carried away the electronic voting machine (EVM) from polling booth no 4, in Gumtala village where polling was subsequently postponed.
82. The clashes between Congress and Akali workers in this ward left over a dozen persons injured. Workers of both parties also pelted stones on each other and polling staff and voters had to take shelter in the rooms. The clashes resulted in the suspension of polling at booth numbers 4 , 5 and 6 for more than an hour. Agitated voters later burnt the furniture of the polling station. Senior Akali leader Manjit Singh Manna and SHO Sadar also exchanged hot words (Walia, V. & Mohan, V. 2007, ‘Violence mars MC elections: Mayor among 36 hurt in Amritsar violence’, The Tribune , 8 August http://www.tribuneindia.com/2007/20070809/punjab1.htm#1 – Accessed 7 March 2008 see also’Poll violence: 7 cases registered’ 2007, The Tribune , 8 August http://www.tribuneindia.com/2007/20070809/punjab1.htm#5 – Accessed 7 March 2008).
83. Sources also indicate that the potential for political conflict is not confined to election periods. The Tribune reported of one potential clash between Congress and SAD-BJP workers in Amritsar in October 2007 that was averted:
84. The Congress was marginalised here today even as the BJP scored a point by organising Dussehra celebrations at the main venue at the Chheharta grain market, courtesy the district administration. Tempers ran high and a possible clash between workers of the two parties was averted.
85. To register their protest, Congress workers burnt the effigy of Ravana on the main Amritsar-Attari road after they were not allowed by the BJP workers to carry the effigies of the three demons inside the venue. Portions of one of the effigies were also damaged when the Congress workers tried to smuggle it into the venue from the second entrance but were pushed back.
86. A Congress leader alleged that the district administration had assured them that both parties would jointly organise the show. However, the said change of stance of the district administration at the eleventh hour infuriated the Congress, which boycotted the function, alleging that it had been hijacked by the ruling SAD-BJP alliance. Timely intervention by Congress MLA O.P. Soni pacified the crowd of Congress supporters, some of whom appeared ready to barge into the Dussehra ground with sticks and rods.
87. Soni said even though the district administration had promised us that it would be a joint celebration with five leaders of both parties on the stage, the Congress was not allowed to participate. The BJP leadership tried to spoil the peace of the area but the Congress still showed maturity by burning the effigies on the road itself. Families from the area boycotted the show, he added (Mohan, V. 2007, ‘Evil burnt, govt-Cong bitterness remains: Clash averted over Dussehra celebrations’, 22 October http://www.tribuneindia.com/2007/20071022/punjab1.htm – Accessed 5 March 2008
88. Other significant events in 2007 include conflict between the spiritual organisation Dera Sacha Sauda and the Sikh community, as reported by the South Asia Terrorism Portal:
89. A constant campaign was re-orchestrated by the radicals against the Dera Sacha Sauda – a group regarded as ‘heretic’ by orthodox Sikhs – and its head, Baba Gurmit Ram Rahim Singh, accused of ‘blasphemy’ and of ‘hurting Sikh sentiments’ The Dera had published advertisements with Ram Rahim Singh dressed as the Tenth Sikh Guru, Gobind Singh. The controversy had dovetailed into party political conflicts, since the Dera had supported the Congress Party in the Legislative Assembly Elections in February 2007, helping the Congress secure 37 of 65 seats in the Malwa belt, where the Dera boasted hundreds of thousands of followers. The Congress Party was, nonetheless, defeated in the Assembly Elections, but the victorious Shiromani Akali Dal, a party that secured its mandate from its claim to represent Sikh interests, was left with an issue to pick with the Dera Further, intelligence sources did confirm that the troubles had started from the Gurudwara at Talwandi Sabo after “a significant amount of ‘chatter’ between priests there and Pakistani Inter-Services Intelligence handlers as well as Wadhawa Singh, the Babbar Khalsa International ‘chief’, who is being retained in comfort - with a small surviving rump of cadres – at Karachi” (‘Punjab Assessment – Year 2008’ 2008, South Asia Terrorism Portal website http://www.satp.org/satporgtp/countries/india/states/punjab/index.html – Accessed 4 March 2008; for reports on conflict between the Dera and police see ‘Dera Violence: Day IV’ 2007, The Tribune , 18 May http://www.tribuneindia.com/2007/20070518/punjab1.htm#1 – Accessed 5 March 2008 – ‘Punjab: All parties meet, situation tense’ 2007, Rediff , 18 May http://www.rediff.com/news/2007/may/18dera2.htm – Accessed 5 March 2008).
A BBC News report from 18 May noted as follows:
90. The group at the centre of the controversy is the Dera Sacha Sauda (DSS), one of many religious sects operating in northern India.
91. These sects usually take root by offering community services and social welfare as well as spiritual leadership.
92. Over time, as their followings grow, they often start clamouring for political influence.
93. … Analysts say the alleged action by the DSS has to be seen in the context of state elections held in Punjab in February.
94. Many of the Sikh protesters have been armed
95. The DSS issued a public appeal for people to vote for the Congress party. Most Sikhs in Punjab support the rival Akali Dal party.
96. According to Punjabi journalist, Jagtar Singh, religious sects have traditionally been very subtle about their support for political parties. They have usually issued internal appeals asking their followers to vote for the political party of their choice.
97. “This is the first time that a public appeal had been made to favour a political party,” Jagtar Singh says.
98. 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.
99. Observers say the latest conflict threatens to lead to a polarisation of the communities.
100. “The call for a social, political and religious boycott of the DSS followers by the Sikh clergy, would divide the Dalits and the peasant, Jat [Sikh farmer] community in the state,” says Jagtar Singh (Singh, J. 2007, ‘What is behind Sikh protests?’, BBC News , 18 May http://news.bbc.co.uk/2/hi/south_asia/6670569.stm – Accessed 6 March 2008)
101. Some sources have suggested that the May 2007 clash between Dera Sacha Sauda and the BJP-SAD combine may also be seen as a political clash between supporters of the Congress party on one side and the predominantly Sikh supporters of the BJP-SAD combine on the other. A report from the Indian Express stated:
102. The clash is arguably about Akali Dal versus Congress. But it also reflects the inability of organised Sikhism as an increasingly “monolithic” religion to adapt to the aspirations and needs of the people in a changing world, says Sukhdev Singh, who teaches in Panjab University and who has tracked the Sacha Sauda phenomenon in Sirsa for 18 years. “While the world becomes more multi-cultural, Sikhism is narrowing under the SGPC”.
103. There is a history of tension and conflict between Sikhs and the Deras - for instance, the recurring clash with Baba Ashutosh followers at Noor Mahal and with supporters of Baba Piara Singh Bhaniarawalla near Ropar in 1998.
104. But the battle may not be wholly either Akali Dal versus Congress or Derawad versus organized Sikhism, warn others. There is a third party to this conflict: the so-called radicals or “fringe elements”, who might seize the initiative.
105. The ruling party is mindful of this, says Manpreet Badal, finance minister in the Akali government, in Chandigarh. “We have decided that our cadres must lead from the front in the protest march on May 31st, we will not allow the fringe elements to take over again.”
106. But these “radicals” and “fringe elements” are also a fuzzy and changeable invocation in Punjab today. Akali leaders in Chandigarh use it to underline their own indispensability in the present juncture. In Bathinda, Baljit Singh Dadoowal, who is himself seen as a hardliner, also warns that “anything can happen” by some undefined unorganised others, if “Sikh anger” is not assuaged (Mishra, V. 2007, ‘Behind Dera- Sikh clash, the shadowboxing’, Indian Express , 27 May http://www.indianexpress.com/story/31994.html - Accessed 5 March 2008; see also ‘Dera followers back on streets’ 2007, Hindustan Times , 28 June; ‘Peace pact in Punjab after more clashes’ 2007, Hindustan Times , 15 May).
107. RRT Research Response IND32740 from January 2008 also explores the relationship between Dera Sacha Sauda and the SAD further (RRT Research & Information 2008, Research Response IND32740 , 16 January).
108. RRT Research Response IND30647 from October 2006 also explored political relations between Congress and Akali Dal in Punjab, (RRT Country Research 2006, Research
Response IND30647 , 9 October). The section on Sikhs and the Punjab from the April 2006 UK Home Office report on India (paragraphs 6.134 to 6.148) give background information on past political violence, but notes that the situation has settled in recent years:
6.148 BBC News reported on 16 March 2005 in an article entitled: “The fading of Sikh militancy”, over two decades after the militancy period began in Punjab, the divide between Sikhs and Hindus has been bridged and the antagonism with the Congress party largely disappeared. “The elevation last year of Manmohan Singh as India’s first Sikh prime minister was the culmination in the changing relations. ‘The alienation between the Sikhs and Congress is a distant memory now. The ground realities are very different now,’ according to analyst Mahesh Rangarajan. In the 1999 general elections the Congress led in Punjab over its rivals the Akali Dal. Two years ago, the Congress convincingly won the state elections in Punjab, dislodging the Akali Dal from power. The state continues to have a Congress-led government” (UK Home Office 2006, Country of Origin Information Report: India, April).
109. Paragraphs 6.193 to 6.201 of the UK Home Office report note that in general there are far fewer human rights abuses by security personnel and police, although they still operate with impunity in many cases (UK Home Office 2006, Country of Origin Information Report: India, April).
Political conflict
110. Control of the state legislative assembly in India has alternated in recent years between the Congress party, and the coalition of the Sikh-based Shiromani Akali Dal (SAD) and the Hindu-based Bharatiya Janata Party (BJP). At the legislative assembly election in February 2007, the SAD-BJP coalition won power from the incumbent Congress party and formed government (RRT Research & Information 2008, Research Response IND33034, 13 March ;Badal sworn in as Punjab CM’ 2007, Rediff, 2 March http://in.rediff.com/news/2007/mar/02punpoll.htm – Accessed 9 July 2007 ).
111. Information was found to indicate that the Dera Sacha Sauda became involved in Punjab state politics in the lead up to the February 2007 elections, urging followers to support the Congress party. In an article published in the Economic and Political Weekly in October 2007, Lionel Baixas wrote that: Before the February 2007 PLA elections, the seven-member “Political Affairs Wing” (PAW) of the Dera Sacha Sauda sect, for the first time in the history of the sect founded in 1948 by a partition refugee from Baluchistan, Shyam Mastana, issued a directive to its followers in Punjab, especially well represented in the south-western districts of the state, to cast “each and every vote” in favour of the Congress candidates in the 2007 PLA elections. Despite the Congress’ overall electoral defeat in the polls, this played a significant role in the Congress’ victory in several constituencies of the Malwa region, a traditional bastion of the Akali Dal. Actually, without the near wiping out of the Congress from urban Hindu constituencies by the BJP, the Akali Dal (Badal) could hardly have won the elections. Since then, the Akalis strongly resented the Deras, violence had already erupted one month before the controversy, when a Sacha Sauda memorial was ravaged on April 23. The reasons for the Dera’s support of the Congress remain unclear. One thing is that Gurmeet Singh’s daughter is related by wedding to Bhatinda’s Congress legislator, Harminder Singh Jassi, and Amarinder Singh’s advisor, Bharat Inder Singh Chahal. According to others, Gurmeet Singh would have exchanged his support for the Congress to obtain its protection against a possible indictment for the murder of Ram Chandra “Chhatrapati”, a Sirsa-based journalist who was investigating alleged Sacha Sauda
criminality, and the CBI’s probing allegations that he was involved in such illegal practices as sexual enslavement of women premis. Other conspiracy-lovers suspected the Congress to have intentionally fomented sectarian trouble with a view to destabilise the Badal government, hence embarrassing its relationship with its ally, the BJP (Baixas, Lionel 2007, ‘The Dera Sacha Sauda Controversy and Beyond’, Economic and Political Weekly, Vol. 42, No. 40, October 6, pp 4059-4065).
112. An article published on the Economist website on 5 July 2007 indicated that the Akali Dal Party was instrumental in encouraging protests against the Dera Sacha Sauda (‘Dangerous tensions in Punjab’ 2007, The Economist, 5 July).
113. Information was found to indicate that the political conflict between mainstream Sikhs and the Dera Sacha Sauda may have its roots in underlying caste-based tensions which subsist in Punjab. In an article published in the Economic and Political Weekly in 2003, Harish K. Puri argues that although the teachings of the Sikh Gurus advocate a largely caste-free society, a Sikh-specific caste hierarchy has evolved in the Punjab, with the land-owning agriculturalist jats at the top, and the dalits (or untouchables or scheduled castes) at the bottom (Puri, Harish K. 2003, ‘Scheduled Castes in Sikh Community: A Historical Perspective’, Economic and Political Weekly, Vol. 38, No. 26, June 28 http://www.sikhspectrum.com/112007/scheduled.pdf – Accessed 19 March 2008).
114. In an article published in October 2007, Ronki Ram indicates that while the jat Sikhs, who dominate the political and religious structures of Punjab, constitute about one-third of the population of the state, the dalits are almost as demographically significant, comprising about 29% of the total population: Punjab has the distinction of being home to the largest proportion (29 per cent) of scheduled castes (SCs) population in the country with the lowest share in the ownership of land (2.34 per cent of the cultivated area). The SCs in Punjab belong to different religions and castes. Mazhabis and ramdasias, the two dalit castes among the Sikhs, particularly the mazhabis, are the most deprived. They embraced Sikhism in the hope of gaining social equality, but even in the new religion untouchability continued to be practised against them.
… They have been forced to live in separate settlements, contemptuously called ‘thhattis’ or ‘chamarlees’, located on the western side and away from the main body of the villages. They carry no “say” in the local structures of power. All the Sikh organisations like gurdwaras, Sikh deras, SGPC, and Shiromani Akali Dal are under the control of the jat Sikhs.
…Dalits are often heard complaining that the jat Sikhs refused to consider them equal even after death by disallowing cremation of their dead in the main cremation ground of the village. This has forced them to establish separate gurdwaras, ‘janjghars’ (marriage centres) and cremation grounds. It is against this backdrop of social exclusion that a large number of dalits have been veering away from the mainstream Sikh religion and enrolling themselves into various forms of non-Sikh deras in Punjab. Another probable cause behind the large-scale dalit following of the deras could be the absence of a strong dalit movement in the state (Ram, Ronki 2007, ‘Social Exclusion, Resistance, and Deras’, Economic and Political Weekly, Vol. 42, No. 40, October 6, pp. 4066-4074).
115. An article published in Frontline in June 2007 noted that while Guru Gurmeet Ram Rahim Singh is himself from a jat family, the egalitarian message of the Dera Sacha
Sauda has attracted many people within the dalit community, with informal estimates by Punjab police indicating that up to 70 percent of Dera followers may be dalits (Swami, Praveen & Sethi, Aman 2007, ‘Politics, Religion, and Resistance’ The Hindu website, 4 June http://www.hindu.com/2007/06/04/stories/2007060402631100.htm – Accessed 11 March 2008 ).
116. Lionel Baixas argues that a de facto consociational mode of government, which inhibits communal conflict between Sikhs and Hindus, has developed in Punjab, but questions the extent to which this system is calibrated to deal the political aspirations of the dalit population, and flags the possibility of long-term conflict if these aspirations are not accommodated. Baixas identifies alternative religious movements in Punjab as the primary locus of dalit assertion (Baixas, Lionel 2007, ‘The Dera Sacha Sauda Controversy and Beyond’, Economic and Political Weekly, Vol. 42, No. 40, October 6, pp 4059-4060, 4064-4065). Similarly, Ronki Ram situates the phenomenon of the Dera Sacha Sauda within a broader pattern of dalit assertion in Punjab, noting that while many dalits in Punjab have had opportunities for economic advancement by distancing themselves from traditional caste occupations, this has not been matched by social advancement:
117. With an improved economic position and a sharpened sense of social consciousness, dalits in Punjab started demanding a concomitant rise in their social status that has also probably pushed them closer to the alternate religious bodies promising dignity and social equality In the process, they also challenged the dominant caste and its claims to represent true Sikhism. The jat Sikhs, however, interpreted it as a challenge to the Sikh- Khalsa identity, which further deepened the existing contradictions between them and the dalits. That is what has led to a series of violent caste clashes between dalits and jats in Punjab in the past few years, as also the repeated confrontation (1978 Nirankaris crisis, 2001 Bhaniarawala crisis and 2003 Talhan crisis) between the Akalis and followers of one or the other non-Sikh deras. The confrontation between the Akalis and the premis of the Dera Sacha Sauda is the most recent case in point. These clashes seem to be more about identity politics between jat Sikhs and dalits than a row over religion. They are in no way a manifestation of communalism in the state. However, given the religious milieu of the social sphere in Punjab they often assume a communal posture. They, in fact, are signs of an emerging dalit assertion against social exclusion that have all the possibilities of snowballing into violent conflicts if left unresolved (Ram, Ronki 2007, ‘Social Exclusion, Resistance, and Deras’, Economic and Political Weekly, Vol. 42, No. 40, October 6, pp 4067-4068).
118. Notably, information was found to indicate that the Hindu-based BJP took a mediating role in the conflict between the Dera Sacha Sauda and Sikhs during the crisis of May 2007, and may be beginning to court the electoral support of the Dera. Lionel Baixas reports that the BJP, partners in the ruling coalition, did not support the anti-Dera Sacha Sauda disposition of the Shiromani Akali Dal in May 2007, instead criticizing the inaction of the SAD, and threatening to leave the coalition if the conflict was not controlled (Baixas, Lionel 2007, ‘The Dera Sacha Sauda Controversy and Beyond’, Economic and Political Weekly, Vol. 42, No. 40, October 6, pp 4063-4064). More recently, an article published on the Times of India website in January 2008 reported on actions in support of the Dera Sacha Sauda by the BJP in Punjab, and speculated that these actions were calculated to gain electoral support amongst Dera followers in the
Malwa region, at the expense of the Congress party (‘BJP getting close to Dera Sacha Sauda?’ 2008, The Times of India, 21 January).
119. On the matter of state protection the MRT-RRT Country Advice reports that there is no evidence that Indian authorities withhold state protection from DSS members or the DSS leadership (IND39741 DSS - Punjab - Haryana - Shiromani Akali Dal - Madhya Pradesh - Sikh Extremism - Ek Noor Khalsa Fauj - State Protection; [12 January 2012, p2].
FINDINGS AND REASONS
120. The applicant has stated that he is a national of India and arrived in Australia on an Indian passport. He is a Sikh from the state of Punjab. The Tribunal accepts from the applicant’s passport [number deleted: s.431(2)] and oral evidence that he is a citizen of India.
121. For the purposes of the Refugees Convention the Tribunal has assessed the applicant’s claims against India as his country of nationality.
122. The applicant claims fear of serious harm because he was an active member of the Congress party. He claims that he and his brothers were attacked by the opposition party Akali Dal, specifically, [Mr B] of the Akali Dal and associates including gang leader, [Mr C]. As a result of this the applicant and family members initiated criminal proceedings against them in Indian and present themselves to provide evidence in the court hearing. The case against the Akali Dal members was ultimately unsuccessful before the court.
123. Following the court hearing, members of the Akali Dal attempted to kill the applicant and [Mr B] is blaming the applicant for his brother’s murdered. The Akali Dal members, backed by [Mr B], stepped up their activities against opposition party members and are looking for the applicant “everywhere”. For this reason the applicant fears for his life in India.
124. The Tribunal is satisfied that the Refugee Convention ground of actual or imputed political opinion is the essential and significant reason for the harm feared as required by subsection 91R(1)(a) of the Migration Act.
125. The Tribunal is satisfied that the applicant’s claims may come within the examples of serious harm contained in sections 91R(1) and (2) of the Migration Act.
126. The Tribunal is satisfied that the harm feared by the applicant is serious harm and systematic and discriminatory conduct as required by subsection 91R(1)(b) and (c) of the Migration Act.
127. The Tribunal has considered the claims set out in the oral evidence given at the hearing and the other available evidence before the Tribunal.
128. The Tribunal is required to determine whether the applicant has a well-founded fear of persecution and if so, whether that fear amounts to persecution for a Convention related reason.
129. In Chan’s Case the High Court of Australia established the law that a fear of persecution will be well-founded if there is a ‘real chance’ that it will occur.
130. The Tribunal accepts that the applicant grew up and lived in Punjab state in India. The Tribunal accepts from the applicant’s demeanour and nature of providing his evidence that the applicant was credible when giving his evidence to the Tribunal at the hearing. This includes statements made by the applicant that would not support his claims, such as planning ultimately to return to India.
131. The Tribunal first considered whether the applicant is a member of the Congress party as claimed. The applicant’s evidence was that he was a youth leader and would place posters and flags around his [workshop] where he was employed and would generally lobby in support of the Congress party. Whilst the applicant’s evidence at hearing was lacking in detail about the Congress party, the Tribunal is prepared to accept that he was engaged in activities in support of the Congress party and was targeted by members of the Akali Dal in association to his party support.
132. The Tribunal accepts from the available country information consulted that no information could be found to suggest that there is targeting of Sikh supporters of the Congress party in Punjab in recent times [RRT Research & Information 2008, Research Response IND33034, 13 March (Q1 Current political situation in Punjab, Q2 Relations with Sikhs). Relevantly, the fact that the applicant’s complaint and related court proceedings against the Akali Dal were unsuccessful, does not strengthen or corroborate the applicant’s claims on this point.
133. In relation to membership of a particular social group, the High Court in Applicant S (above) held that there were three steps in determining whether a group is a "particular social group" for the purposes of Art 1A(2) of the Convention : "First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large."
134. The Tribunal accepts that the applicant’s membership or association with the Congress party could also be characterised as a particular social group. The Tribunal considered whether the applicant has suffered persecution for reasons of his membership or association of the Congress party which the Tribunal accepts can be categorised as a particular social group.
135. The Tribunal accepts that recently in India there have been violent clashes between the Congress party and various Sikh groups including opposing parties such as the Akali Dal. However, there is considerable evidence that state authorities have intervened to provide protection to associates of the Congress party and other political groups in Punjab state in these situations. The Tribunal refers to the country information above in relation to State protection.
136. The Tribunal has noted the applicant’s response to the country information put to him that state authorities were providing a high level of security to political leaders in Punjab (his own state) and that they routinely intervene in disputes at political gatherings. Although the applicant’s response at the hearing was that the police in
Punjab state were corrupt and ineffective, this is inconsistent with his own actions whereby he sought the assistance of the law enforcement authorities and the courts in India for protection and justice for the alleged actions in the past by [Mr B] and members of the Akali Dal due to his political affiliation to the Congress party. The Tribunal infers from these circumstances that the applicant considers that the state authorities i.e. the police and justice system are equipped to address the physical violence perpetrated against the applicant and his family and that the state can protect him against the harm which he fears.
137. The Tribunal is satisfied from the available country information consulted that there is no evidence that Indian authorities withhold state protection from members of the Congress party or other groups such as the leadership of the Dera Sascha Sauda (IND39741; DSS - Punjab - Haryana - Shiromani Akali Dal - Madhya Pradesh - Sikh Extremism - Ek Noor Khalsa Fauj - State Protection; [12 January 2012, p2]. The Tribunal is satisfied that, although imperfect, the state authorities in India provide an adequate level of protection to the applicant against the harm which he claims he fears. The Tribunal is satisfied that the applicant is afforded effective protection from the state authorities throughout India including, in his home state of Punjab.
138. The Tribunal has also given substantial weight to the comments made by the applicant towards the end of the hearing, where he explained that he does not wish to live in Australia permanently but that he wanted to “have some time to live here peacefully” and seeks only to have a little more time in Australia before he returns. The Tribunal considers that these comments by the applicant are inconsistent with the notion of a well-founded fear of persecution were he to return to India. The Tribunal has considered these comments in the context of other comments by the applicant made at the hearing about the length of his stay when he returned to India in circumstances where he claims he feared persecution: that he felt “good over there and decided to live there”; and that he returned to sell his car and other belongings and to close his bank accounts.
139. The Tribunal carefully considered the situation for the applicant as an active member associate and campaigner of the Congress party in India both now and in the reasonably foreseeable future. The Tribunal finds that there is evidence that there is effective state protection available to the applicant in India. Looking to the reasonably foreseeable future, the Tribunal is satisfied that there is not a real chance that he will face persecution in India. It finds to be remote the chance that he would suffer persecution there for reason of his imputed or actual political opinion, membership of a particular social group or for any other Convention reason.
140. Having considered all the available evidence before it, the Tribunal is satisfied that the applicant does not have a well-founded fear of persecution for reasons of his imputed or actual political opinion due to his association with the Congress party in India, his membership of a particular social group, or for any other Convention based reason.
141. It is not therefore necessary to consider internal relocation in India.
142. The Tribunal is satisfied that the harm claimed by the applicant is significant harm for the purposes of subsection 32(2A) of the Migration Act.
143. 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 as the receiving country, there is a real risk that he will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The Tribunal considers that in light of the applicant’s own evidence before it, relating to his willingness and plan to return to India, there are no substantial grounds for believing there is a real risk that he will suffer significant harm in the circumstances.
CONCLUSIONS
144. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
145. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
DECISION
146. The Tribunal affirms the decision not to grant the applicant a Protection (Class XA) visa.