SZDWM v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 This is an application for extension of time to file and serve a notice of appeal from a decision of a Federal Magistrate made on 15 March 2005. His Honour dismissed an application for review of a decision of the Refugee Review Tribunal ('Tribunal') made on 24 July 2002 and handed down on 13 August 2002.

Background 2 The applicant is a citizen of India who arrived in Australia on 4 December 2000. On 12 January 2001, he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 21 March 2001, a delegate of the respondent refused to grant a protection visa to the applicant and on 12 April 2001 the applicant applied to the Tribunal for review of the decision. 3 The applicant's claims are adequately set out by the Tribunal as follows: 'His family is very religious. He claims that his uncle and younger brother are supporters of Babbar Khalsa, which is considered to be a terrorist group by the Indian authorities. He claims that his younger brother and uncle's activities are limited to attending rallies, collecting funds and propaganda for the Khalistan movement. He claims he was never a member of this movement, but was a member of the All India Sikh Student Federation, which engaged in peaceful protest in 1990. He claims that the police arrested his uncle from the applicant's home; but his uncle managed to escape, and they received phone call from his uncle. He claims that they were subjected to police violence. He claims that he was beaten up a little because of his age but his father was badly tortured and kept in detention for several months. He claims that his father was released after paying a huge amount of money as a bribe through a middle man, but the police kept coming to the applicant's home and kept harming them. The applicant claims that in 1999 his younger brother left home because the police suspected that he had joined his uncle. The applicant claims that he was arrested in July 2000 and they wanted to know the whereabouts of his uncle and brother and if the applicant had any contact with them. He claims that he was treated badly and after being released he had to report to the police on a weekly basis. He claims that sometimes the police asked him to stand or sit all day and sometimes they beat him up. He claims that he became the victim of violence and human rights abuses by the police. He claims that although there was a promise of an investigation into human rights abuses, it has not happened, and the police have not been punished for their abuses. He claims that under these circumstances he does not think the Indian authorities can protect him in India.' 4 The Tribunal set out in detail the applicant's response to questions put to him at the hearing. The Tribunal also referred extensively to independent country information. The Tribunal then addressed the claims made by the applicant: 'The Tribunal does not accept the applicant's claims that his brother and uncle are wanted terrorists. In the hearing the applicant claimed that his brother and uncle did not have high profiles in the movement and their only activities were attending rallies. At most the Tribunal is prepared to accept that the applicant is a Sikh and the applicant's uncle and brother may have attended Babbar Khalsa rallies in the early 1990's. The Tribunal does not accept that the police detained the applicant in 1997 and again in 1998, because the applicant's brother and uncle are wanted terrorists. The Tribunal accepts that they are at most low level supporters of the Babbar Khalsa movement and not terrorists or perceived as terrorists. The Tribunal accepts, on the basis of the independent information set out above, that Sikhs, particularly young Sikh males, were at risk of persecution in India in the mid to late 1980's. This was a horrendous period of time in India's history and many atrocities were committed against the Sikh population. However, the independent information before the Tribunal clearly indicates that the wholesale persecution of Sikhs was at an end by 1992 when peace was restored and the situation began to return to normal. Things have continued to improve since the early 1990's. Sikhs are not a persecuted group in India today. The Tribunal is not satisfied that the applicant's uncle and brother were militants in the Babbar Khalsa movement. The independent information before the Tribunal indicates that the Sikh militant movement is no longer active in Punjab and the hard core militants have either been physically wiped out or are no longer in India. The independent information before the Tribunal clearly indicates that the few remaining Sikh militants are now based in Pakistan. Therefore, it follows that the Tribunal does not accept that the applicant has a well founded [fear] of persecution as a result of his relationship with his uncle and brother and their alleged activities. The Tribunal does not accept the applicant's claims to be credible and does not accept that he has ever suffered any form of past persecution in India. The Tribunal places no weight on any of the applicant's claims of past persecution. Furthermore, the Tribunal is not satisfied that the applicant has ever been involved in any activity which would give him a profile or that would draw him to the attention of any potential persecutor. The Tribunal is not satisfied that the applicant has been candid about his claim to need Australian Government protection for a Convention reason. The Tribunal is satisfied that the applicant left India legally and on his own properly issued, Indian passport, which he stated at the outset of the hearing.' 5 It is clear from these comments of the Tribunal that the fundamental difficulty for the applicant was that the Tribunal did not accept his account of his experiences in India or of the state of the country as described by the applicant. Consequently, the Tribunal affirmed the decision of the delegate.