SZESD v Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT 1. This is an appeal from a decision of Federal Magistrate Lloyd-Jones given on 20 June 2005 dismissing an application for review of a decision of the Refugee Review Tribunal ("RRT") handed down on 18 December 2002. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.

Background 2. The appellant is a Sikh male from the Punjab in India who arrived in Australia on 20 September 2001. He lodged an application for a protection visa on 29 October 2001. 3. The appellant claims to have a well founded fear of persecution against the Indian government because of his membership since 1984 of the Khalistan Commando Organisation ("KCO") which seeks a separate Sikh homeland. He claims that as a president of the local branch Sikh activists have stayed, and stored ammunitions, at his house. He claims that in 1992 the police raided his house and arrested the appellant and his brother and that whilst in detention he was tortured and falsely charged with harbouring extremists. 4. The appellant claims that from 1993 he lived and worked in Dubai in the United Arab Emirates occasionally returning to India to determine the safety of the situation but the he was pursued by police. When the police became aware of his location in Dubai in September 2001 the appellant had cause to and did move to Australia. 5. The RRT accepted that the appellant was a Sikh from India, that he had been living in Dubai, however, it had concerns about the appellant's credibility and found the appellant's claims exaggerated, vague and inconsistent. The RRT cited as an example the fact that in his application for a protection visa the appellant indicated "N/A" to questions about whether he had been convicted of a crime or had charges pending against him, but in a later statement the appellant admitted that he feared being arrested and tried on return to India. 6. The RRT noted that at the hearing the appellant confirmed to the RRT that he was a member of the KCF and feared arrest and trial in India as a result of his illegal KCF activities. However, he later claimed that he was forced to join and that his only involvement was in storing arms at his family's farm which he acknowledged was illegal. The appellant said he knew nothing about the KCF except the name of the chief of the organisation in 1992 and he was unable to say when he ceased his association with the KCF. 7. The RRT referred to three documents provided by the appellant shortly before the Tribunal hearing. It gave no weight to the documents, observing that it was easy to get fake documents in India and the appellant seemed to know little about the contents of the documents. An unsigned affidavit from the head man of the appellant's village stated that the appellant "is" a member of the KCF but this was inconsistent with the appellant's own evidence that he had not had association with the KCF for over a decade. 8. The RRT considered that the arrest warrant was of poor quality and found it implausible that such a warrant would be issued "out of the blue" nine years after the alleged incident, after the appellant had appeared in court and as all the other evidence suggested that the case was closed. Also, the appellant did not claim in his application for a protection visa that he was wanted by the authorities. 9. The RRT did not accept that the appellant was a member of the KCF. It observed that in addition to rejecting the documents relating to this claim, the RRT found the appellant's evidence about this matter to be unsatisfactory. In particular there was no mention of the KCF in the application for a protection visa and his oral evidence at the hearing did not support his claim because he knew nothing about it. 10. The RRT accepted that the appellant might have stored arms for others who may have belonged to the KCF but it did not accept that this activity amounted to membership of the KCF by the appellant. The RRT found it plausible and consistent with independent country information that the police discovered weapons and charged the appellant. However, the RRT found the appellant's evidence about the case against him for storing arms was unsatisfactory. 11. In his application for a protection visa the appellant claimed he was falsely charged with harbouring extremists. At the hearing the appellant stated that the case against him was finished but on realising that this might "undermine his claim" the appellant said he did not know if it had finished but the lawyer said it was. 12. The RRT rejected the appellant's claim to be a member of the KCF and found that the case against him was closed. It noted that the authorities took activities of the KCF seriously and observed that if the appellant was a member of the KCF, or if the case remained open, this would be inconsistent with the fact that he had been allowed to retain his passport, emigrate to the UAE and leave India and openly return on a number of occasions. 13. The RRT concluded that the appellant did not have a well-founded fear of arrest and trial upon return to India in relation to arms activities or for being a member of a terrorist organisation. It considered it to be implausible that the authorities would have retained or resumed interest in the appellant for an arms incident a decade ago. The RRT observed that even if it was wrong in its conclusion and the appellant was arrested and charged upon return to India, the appellant had access to adequate state protection and the judiciary was independent. Accordingly, if he were prosecuted it would be according to laws of general application and not persecution within the meaning of the Convention. 14. Finally, the RRT observed that in any case it considered it reasonable in the appellant's circumstances to relocate elsewhere if he feared harm or harassment in his home area. The RRT rejected the appellant's assertion that the police would "find him any where in India" because this was not supported by the appellant's own evidence that he was not a person with a high militant profile. Nor was it supported by independent country information which suggested that it was unlikely that the Punjabi police would pursue an individual to another part of the country.