Applicant VCAT of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT 1 This is an application for a review of a decision of the Refugee Review Tribunal ("the Tribunal") affirming a refusal by a delegate of the respondent Minister to grant the applicants protection visas. The first and second applicants are husband and wife and the third and fourth applicants are their children now aged, respectively, 18 and 12. The first applicant ("the applicant") is a Sikh now aged 44 and was born at Urapan in the Indian State of Punjab. In 1976, the family moved from the Punjab to Surat in Gujarat State and, in 1980, after certain of his relatives had entered the hotel business, the applicant gave up his occupation as a truck driver and began to work with one of his brothers in the family business. The second hotel in which he worked, the Punjab Palace, was on National Highway No 8 and, according to the applicant, was patronised by many young people escaping from police in the Punjab after disruption in that State stemming from the Sikh separatist movement. On the applicant's account, the coming and going of large numbers of Punjabis to and from the hotel attracted the attention of the Gujarat Police but the family could not refuse to receive the Punjabis, some of whom were armed and extracted co-operation by threats. The specific events to which the applicant adverted were described by the Tribunal in its reasons in these terms; "The applicant states that on 30 March 1997, the police conducted a raid on the hotel. The applicant was not there as he was visiting Punjab. His brother and four separatists were at the hotel. Two of the separatists escaped, but the applicant's brother and two other separatists were taken to the police station. The applicant claims that his brother was detained for 10-12 days and tortured because he had harboured terrorists and had not informed the police about them. The applicant states that his father paid a bribe to have his brother released. The applicant claims that the day after the raid, the police returned to the hotel to look for him because he was the joint manager of the hotel and had also provided accommodation to the separatists. The police questioned his wife and his mother about his whereabouts. The applicant said that his wife telephoned him and told him about the raid and warned him not to return. The applicant claimed that from then on he was in hiding. The applicant claims that the two separatists who had escaped told the other hotel owners in the area that the applicant's family had informed the police that they were at the hotel. The applicant claims that he was afraid of what the terrorists might do to him if he returned to Gujarat. The applicant claims that on 25 April 1997, his brother's scooter was hit by a truck driven by the two separatists who had escaped the police raid. The separatists did this because they believed that the applicant and his brother had informed the police about them. The applicant's brother was severely injured in this accident. The applicant claims that the Gujarat police came looking for him every month or so. The police also questioned his family members in Punjab. The applicant claims that he hid with various family and extended family members and moved around a lot. Eventually he contacted his wife's family in Australia who sponsored his visit. He states that when he received his visitor visa, he sold the hotel in preparation for his escape. The applicant claims that he cannot return to Gujurat or anywhere in India because the police are still looking for him." 2 The applicant sought to corroborate that account by submitting several pieces of documentary evidence including one evidencing the contract pursuant to which he had participated in conducting the Punjab Palace Hotel and various police and medical reports as well as "country information" which, the Tribunal noted, concerned "human rights abuses in India, including a massacre of Sikhs in Jammu and Kashmir in March 2000, ongoing problems in Punjab and the current religious violence in Gurajat." 3 The applicant repeated his claims in oral evidence before the Tribunal which it summarised as follows; "The applicant confirmed his claim that on 30 March 1997, the police had raided the Hotel Punjab Palace. Four terrorists were staying there, but two of them escaped. The police arrested the other two terrorists and the applicant's brother, Jaswant, and took them to the police station. The applicant confirmed that his brother had been detained for 10-12 days and had been tortured during this period. He was released without being charged after the applicant's father paid a bribe. The two terrorists were charged. The applicant himself was visiting relatives in Punjab at the time, so was not arrested. The police came to look for him the next day, and his family warned him not to return. The applicant stated that he went into hiding and never returned to Gujarat. The applicant claimed that the terrorists who were staying at the hotel belonged to the Khalistan Commando Force. They had been staying in the hotel for over two months. On being asked why he had not informed the Gujarat police about the terrorists, the applicant responded that the terrorists were armed and had threatened to kill his brother and himself if they informed the police. The applicant confirmed that after the raid, the two terrorists who had escaped told other local hotel owners that they were going to kill the applicant and his family. These terrorists had stolen a truck and staged an accident on 25 April 1997 in which the applicant's brother had been seriously injured. The Tribunal informed the applicant that it considered it to be implausible that having escaped the police raid in which two of their colleagues were captured, the remaining terrorists had stayed in the area for over three weeks publicly informing people that they were Sikh terrorists who were planning to kill the applicant's family. Such actions would have significantly increased their risk of being captured by the police. It was also implausible that armed members of the Khalistan Commando Force would go to the trouble of staging an accident between a truck and the applicant's brother's scooter when they had the capacity to simply shoot the applicant's brother. The applicant said that the terrorists had staged the accident because they didn't want everyone to know that they were responsible for harming his brother. The Tribunal asked why, if that were the case, the terrorists had gone around telling people that they intended to kill members of the applicant's family? The applicant did not respond to this point. The applicant's adviser suggested that the terrorists may have copied the police methodology of staging false encounters." 4 In the course of the oral hearing, the Tribunal exposed to the applicant and his adviser the respects in which it found it difficult to accept certain parts of his account. The recital of how that was done occurs in this passage from the Tribunal's reasons; "The Tribunal informed the applicant that it accepted that his brother had been seriously injured in a traffic accident in April 1997, but there was nothing in the documents which had been submitted by the applicant which linked this accident to Sikh terrorists. In his report to the police, the applicant's brother, Surjit, had stated that the people responsible were unknown. The applicant claimed that some time later, two men who had been sleeping in the truck had informed his brother that the men driving the truck had been Sikh terrorists. The Tribunal asked why Surjit had not gone back to the police and reported this information to them. The applicant responded that he had done so, but the police had not written it in the report. After 3-4 months the police had not found who was responsible, and they had closed the file. The applicant informed the Tribunal that he had spent the nearly three years in hiding, going from place to place. Sometimes he travelled in trucks to Bombay or Delhi, other times he stayed with relatives or other people in Punjab. He could not stay in Bombay or Delhi because he didn't speak Hindi and he had no work or family support in these places. He was afraid that the terrorists were after him, and that the police were also looking for him. The Tribunal informed the applicant that it had difficulty accepting that the police were still looking for him five years after the raid on the hotel had taken place. The matter would have had to be a very serious one for the police to have retained this level of interest for so long. However, his brother, Jaswant, had been released from detention without being charged. If the matter had been serious, the police would not have released him simply because his father had paid a bribe. The applicant's adviser commented that Jaswant's medical condition may have prevented the police from taking further action against him. The Tribunal also noted that the applicant's other brother, Surjit, who was also a partner in the hotel, had continued to stay in Surat without any problem. The applicant said that Surjit had not been involved in running the Hotel Punjab Palace. He had remained at the first hotel. The Tribunal responded that nevertheless, Surjit was a partner in the hotel, and the police could have been expected to have taken an interest in him if they were so concerned about what had been going on at the Hotel Punjab Palace. The Tribunal noted that the applicant had never been charged with having committed any crime. The applicant responded that he was afraid he would be arrested if he returned. He said that his life was in danger from both the terrorists and the police. The Tribunal noted that the applicant had been the holder of a passport issued to him in 1991. However, despite claiming to have been in hiding, fleeing from place to place in fear of his life, it had taken him nearly three years to apply for a visa for Australia, where many of his wife's relatives were living. The applicant said that he had not thought to apply earlier for a visa for Australia. The Tribunal noted that it was hard to believe that the applicant would not have thought to apply for a visa if his circumstances had been as he claimed they were." 5 There was then reference to the applicant's home having been almost entirely destroyed in the Gujarat earthquake of 2001 and to religious violence currently occurring between Hindus and Muslims in Gujarat. When the Tribunal commented that this would not be directed against the applicant as a Sikh, he replied that "although he had a turban and a beard and looked like a Sikh, his brothers did not and they might be harmed by people who mistook them for Hindus." 6 The Tribunal also noted evidence from the applicant's sister-in-law which it recounted as follows; "She informed the Tribunal that she had visited India in April 2001 and had gone to Surat. Mrs Kaur said that the applicant was still in grave danger in India. The police were still looking for him in Surat. She said that his parents received phone calls about him. Sometimes these calls were from the people responsible for his brother's accident, and sometimes they were from the police, although it was possible that it was not the police but the terrorists pretending to be the police. She stated that the earthquake had destroyed the applicant's property. His parents were living in the one remaining room of the house. His mother was blind and had only one leg. It was difficult for the applicant's parents to manage financially." 7 Under the heading "Findings and Reasons", the Tribunal first noted that it was not obliged, even in the absence of rebutting evidence, to accept uncritically every plausible or coherent claim made by an applicant. However, after reminding itself of the caveats entered by a Full Court of this Court in Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and by Gummow and Hayne JJ in Abebe v The Commonwealth (1999) 197 CLR 510 at 577, the Tribunal concluded that the applicant was not a credible witness. It explained its reasons for that conclusion by first observing; "The Tribunal does not accept the applicant's claims that he is wanted by the police in both Punjab and Gujarat because the police believe that the applicant and his brother, Jaswant, allowed Sikh terrorists to stay at their hotel. The Tribunal finds these claims to be implausible for the following reasons. The applicant testified that his family had operated a hotel situated on National Highway No.8 without incident for seventeen years, including the period in the 1980s and early 1990s when the Sikh separatist movements in Punjab were at their peak (UK Home Office Country Assessment: India, October 2001, Section 5.6). The applicant said that Sikh militants did not stay at this hotel. It is not plausible, in view of the history of the first hotel, that another hotel owned by the applicant and his two brothers, situated only one and a half kilometres away from the first hotel on the same highway, would attract a clientele of Sikh militants escaping the Punjab immediately it opened (the hotel opened in January 1997, and the applicant stated that the four members of the Khalistan Commando Force had been staying at the hotel for over two months at the time of the police raid on 30 March 1997). The Tribunal does not find convincing the applicant's explanation that the militants liked the second hotel because it was newer and bigger than the first hotel." 8 A reference was then made to "country information" which indicated that, by March 1997, the Sikh militant movement was no longer active in Punjab and which led the Tribunal to reject "the applicant's claim that four members of the Khalistan Commando Force escaping from Punjab chose to stay at his hotel in January - March 1997." 9 The Tribunal also found implausible the applicant's claim that, after the police raid, the two remaining terrorists had told other hoteliers that they regarded the applicant's family as responsible for the raid and would take revenge on them. It explained that finding by saying; "It is inherently implausible that terrorists would publicly inform people of their identity by linking themselves to the other two terrorists who were arrested in the raid, and as the police were presumably looking for them, neither is it plausible that they would have remained in Surat, particularly in the overt way claimed by the applicant, which could only have significantly increased the chance of them being caught." 10 The Tribunal also rejected the claim that the applicant's brother had been deliberately injured by terrorists in a "staged" motor accident. As to that claim, the Tribunal said; "The Tribunal considers the claim that the terrorists copied the tactics of the police and staged a false encounter in which the applicant's brother was injured to be implausible. As discussed with the applicant, if the terrorists were openly stating that they were planning to harm the applicant's family, there seems little point in them trying to make it appear that the applicant's brother was harmed in a traffic accident. Whilst the police, particularly in Punjab, may have adopted "staged" or "fake" encounters as a modus operandi, the Tribunal has seen no reports of terrorists doing the same. As discussed with the applicant at the hearing, the Tribunal accepts that his brother was injured in a traffic accident, but does not accept that Sikh terrorists were responsible. The police report states that an unknown person caused the accident, and the Tribunal is not convinced by the applicant's subsequent claim that two former employees of the hotel witnessed the terrorists driving the truck. If this were the case, the applicant's brother would presumably have reported this new information to the police and could have obtained another report confirming that he had done so. The Tribunal does not accept what it considers to be a weak explanation by the applicant that his brother did report this new information to the police but they chose not to write it down." 11 The Tribunal similarly rejected as implausible the applicant's claim, supported by his sister-in-law, that the police were still looking for him more than five years after the event because of alleged assistance to terrorists in respect of which no other member of his family had been charged. The final limbs of the Tribunal's reasons for rejecting the applicant's claims are articulated in these passages from its reasons; "The Tribunal's disbelief about the applicant's claims is strengthened by his failure to apply for an Australia visa for nearly three years after the police allegedly raided the hotel in March 1997, during which period the applicant claims that he was constantly on the run and in fear of the police and the terrorists. The applicant had a valid Indian passport issued in 1991. Many members of his wife's family were already living in Australia in March 1997 (his sister-in-law informed the Tribunal at the hearing that she was an Australian citizen and had been in Australia since 1986). When asked why he did not apply for a visa until January 2000, the applicant was not able to provide a reason other than that he had not thought to do so, and when further pressed on this point, he referred to the importance of his son's schooling. It is not believable that the applicant would not have thought to apply for a visa for Australia for three years if, during this period, he really was on the run from the police and from terrorists and fearful that he would be arrested or killed. Taking into account the above, the Tribunal finds that the applicant has fabricated the claims that Sikh militants stayed at the hotel he and his brothers jointly owned, and that the police raided the hotel and arrested two of the militants and the applicant's brother, and that the police in Punjab and Gujarat have been looking for the applicant ever since. The Tribunal finds that the applicant is not wanted by the police anywhere in India for any Convention-related reason, and there is not a real chance that he would be harmed by the Indian authorities if he returns to India for his reason of his race or religion, a political opinion imputed to him or because of his family membership. As the Tribunal does not accept that Sikh militants stayed at the applicant's hotel and that two of them were arrested by the police, it does not accept that two other militants threatened the applicant's brother and injured him in a traffic accident as an act of revenge or that a Sikh militant group has any interest in harming the applicant for the same reason. The Tribunal finds that there is not a real chance that the applicant would be harmed by a Sikh militant group if he returned to India. The Tribunal is aware of the current wave of violence between Hindus and Muslims in Gujarat, but finds that as a Sikh (and one who is identifiable as a Sikh by his turban and beard), the applicant would not be the target of violence for reason of his religion or any other Convention reason if he were to return to Gujarat. The Tribunal notes that the applicant has links in Punjab and speaks Punjabi and he could therefore return to Punjab if he felt that the current unrest made Gujarat an unsafe place. Taking into account the above, the Tribunal finds that the applicant has not been harmed in the past for a Convention reason and that if he were to return to India now or in the reasonably foreseeable future, that there is not a real chance that he would be persecuted for reason of his race or religion, a political opinion imputed to him, his membership of a particular social group, his family, or any other Convention reason. The Tribunal finds that the applicant's claims are not well-founded."