DQO20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

1. The application filed on 18 February 2021 be dismissed.
2. The applicant pay the first respondent's costs in the lump sum amount of $4,500. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Introduction 1 The applicant is a 30-something year old citizen of India and a follower of the Sikh faith. He is from near the city of Amritsar in the state of Punjab where the splendid Sikh Golden Temple, or Harmandir Sahib, is located. 2 The Golden Temple is well-known at least in part because in June 1984 the Indian government ordered the army to eject the Sikh separatist leader Jarnail Singh Bhindranwale and his followers from the Golden Temple where they had holed-up. The offensive was known as Operation Blue Star. The army bombarded the Golden Temple complex inflicting great damage and killing many people. In retaliation, two of the then-Prime Minister Indira Gandhi's Sikh bodyguards assassinated her in October 1984. That led to further conflagration and deaths. That conflict forms the historical backdrop to the present proceeding. 3 The applicant first arrived in Australia in May 2009 as a dependent on his now former-wife's student visa. The applicant was granted student visas in subsequent years. 4 The applicant was refused a Regional Employer Nomination (subclass 187) visa in October 2017. He became an unlawful non-citizen when his bridging visa expired in September 2018. In January 2020, he was remanded in custody on criminal charges. He then applied for the protection visa that is the subject of this proceeding. The criminal charges were quickly finalised and the applicant was transferred to immigration detention where he remains. 5 The applicant's claims for protection were as follows: (1) His father was killed in 1991 because of his high profile in the community and the significant disruption in Punjab that existed in the aftermath of the Operation Blue Star attack on the Golden Temple in 1984. (2) When the applicant was in high school, he started making inquiries with the police about what had happened to his father, and the police harassed and threatened him as a result. (3) The applicant's extended family were affluent and influential and were affiliated with the Akali Dal Party. He believed that these family members were the people who had been causing problems for him and his immediate family with the authorities. (4) The applicant also claimed that one of the prison guards in Australia was linked to a criminal group, had a high profile and was linked to the Punjab Police network. The applicant claimed that the guard had created a false case against him in India. 6 On 5 March 2020, a delegate of the Minister refused to grant the applicant a protection visa. The delegate "seriously question[ed] the authenticity of the applicant's claims and the level of harm feared by the applicant overall" in circumstances where the applicant had returned to India multiple times since his initial arrival in Australia. The applicant's 11-year delay in applying for a protection visa was also a matter of concern to the delegate. The delegate ultimately concluded that the applicant would have sought asylum much earlier if he had a genuine fear of persecution. 7 On 27 March 2020, the applicant applied to the Administrative Appeals Tribunal for review of the delegate's decision. The applicant subsequently attended a hearing of the Tribunal with the assistance of his representative and an interpreter. On 30 June 2020, the Tribunal affirmed the decision under review. 8 The Tribunal summarised relevant country information before it concerning Operation Blue Star in the 1980s and the situation for Sikhs after that time. It ultimately concluded that there was no evidence to indicate that the fractious situation between the State of India and the Sikh population in Punjab continued much into or past the 1990s. 9 The Tribunal recorded its questioning of the applicant at the hearing about why a pro-Sikh party, the Akali Dal Party, would have his father killed in circumstances where the applicant's father was a Sikh, and also why the applicant believed that the Akali Dal and Congress Party worked together in this regard given that country information indicates that the two parties opposed each other. The Tribunal found that the applicant's evidence on this topic was "confused, implausible and fanciful". It concluded that the applicant had invented his claims about the Akali Dal Party and distant relatives having had an involvement in his father's death. 10 The Tribunal accepted that the applicant's father was opposed to Operation Blue Star and that he disappeared in July 1991. However, the Tribunal did not accept that the applicant or his middle brother were tortured by the police. The Tribunal also did not accept the applicant's claims that he was framed by the Indian police prior to his departure in 2009 as claimed in circumstances where he repeatedly and voluntarily returned to his family who remained in Punjab. It also did not accept that the applicant ever investigated his father's death nor that he repeatedly questioned the police about it. It did not accept that he was threatened or intimidated because he was his late father's eldest son. 11 The Tribunal ultimately found that the applicant's visa application was disingenuous in circumstances where he did not apply for protection until long after his first arrival in Australia, returned many times to India, and then only applied when he was detained and potentially placed on a removable pathway. 12 In August 2020, the applicant applied to the Federal Circuit Court for judicial review of the Tribunal's decision. The application contained four grounds, namely: (1) Ignoring materials the decision-maker was required to look at; (2) Not adopting a fair process in making the decision; (3) Reaching a decision that is unreasonable; and (4) Incorrectly interpreting or applying the law. 13 The application was heard by the primary judge on 26 November 2020. His Honour dismissed the application with costs for reasons given in an ex tempore judgment delivered at the conclusion of the hearing.