V97/06064 [1998] RRTA 85 (8 January 1998)

The Applicant, who is a male citizen of India, arrived in Australia in November 1988. He travelled on a valid passport. In May 1995, he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 (the Act). In February 1997, a delegate of the Minister for Immigration and Multicultural Affairs refused to grant a protection visa and the Applicant was notified of that decision by a letter of the same date. In March 1997, the Applicant sought review of that decision.

No issue arises in this case as to the validity of the application for review or as to the Tribunal's jurisdiction to review the delegate's decision.

The Applicant gave evidence at a hearing before the Tribunal on 17 November 1997. The hearing was conducted with the assistance of an interpreter in the Punjabi language. The Applicant was advised by Mr. Harry Grossman, solicitor.

A criterion for a protection visa is that at the time of the decision the Minister, or on review the Tribunal, is satisfied that the applicant is a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended the 1967 Protocol relating to the Status of Refugees: ss.5(1) and 36(2) of the Act. Australia is a party to the Refugees Convention and the Refugees Protocol and has protection obligations to people who are refugees as defined in them.

Article 1A(2) of the Convention 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.

This definition contains four key elements. First, the applicant must be outside his or her country. Second, the applicant must fear persecution. Not every threat of harm or interference with a person's rights for a Convention reason constitutes "being persecuted". Mason CJ referred to persecution as requiring "some serious punishment or penalty or some significant detriment or disadvantage" (Chan Yee Kin v MIEA [1989] HCA 62; (1989) 169 CLR 379 at 388). Harm or threat of harm as part of a course of selective harassment of a person, whether individually or as a member of a group which is subjected to systematic harassment, amounts to persecution if done for a Convention reason. In appropriate cases it may include single acts of oppression, serious violations of human rights, and measures "in disregard" of human dignity. 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. Third, the reason for the persecution must be found in the singling out of one or more of the Convention reasons - 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.

Fourth, the 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 persecution for a Convention stipulated reason. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent. A "real chance" is one that is not remote or insubstantial or a far-fetched possibility.

Finally, the 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. The object of the Convention is to provide refuge for those who, having lost the de jure or de facto protection of their governments, are unwilling to return to the countries of their nationality. It follows that whenever the protection of the country of nationality is available, and there is no ground based on well-founded fear for refusing it, the person concerned is not in need of international protection and is not a refugee. Whether an applicant satisfies the Convention definition 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.

These principles were established by the High Court in Chan Yee Kin v MIEA [1989] HCA 62; (1989) 169 CLR 379, Applicant A & Anor v MIEA and Anor (1997) 142 ALR 331 at 354 and MIEA v Guo & Anor (1997) 144 ALR 567 at 575-6, and the Full Federal Court in Ram v MIEA & Anor [1995] FCA 1333; (1995) 57 FCR 565 at 568.

The Applicant's claims are set out in written submissions to the Department and to the Tribunal and in oral evidence given in an interview with a Department officer and at a hearing before the Tribunal.

The Applicant left India late in 1988 and travelled to an overseas country. He remained there for about a month but did not seek protection as a refugee. He then travelled on to Australia. His application for protection as a refugee was not lodged until seven years later. In his application for a protection visa he stated that he had been a student until late in 1988. Since then he had been a casual labourer and farm hand.

He stated in that application that he was born in the Province of the Punjab and was educated in government schools there until 1988. He stated that his parents, one sister and one brother remained in India and he had one sister in England.

The Applicant appended to his application a statement compiled on his behalf by his advisor, a copy of his passport, a poster purportedly from India indicating that he was a wanted person which at that time was described as a warrant for his arrest, medical reports from India and from Australia, letters from his family and others, and evidence of his membership in the Sikhs Student Federation in Australia.

The main features of the Applicant's claims are as follows:

1. He was present at the Golden Temple in Amritsar in June 1984 when the Indian Army attacked the temple and there were many casualties. Although he was not very old at the time he was arrested and taken to various prisons. Eventually he was incarcerated for six months. He was beaten and questioned at least twice a week concerning the Khalistan movement. He was released when there was a national and international outcry against the detention of women and children.

2. The Applicant claimed that he had been a member of the Sikh Students' Federation (SSF) from 1984 and became very active politically after the events at Amritsar. In early 1985 he accompanied three senior people, from village to village, visiting colleges and universities and promoting the need for an independent Khalistan. People were urged not to co-operate with the government and to support the independence of Khalistan from India. In 1987 Manochar declared Khalistan to be an independent country. It was at this time that the Applicant became a member of the Bhindranwala Tiger Force (BTF), a party in which there was both a political and military component.

3. The Applicant claimed that there had been many occasions for both himself and his family when the police had raided his house looking for him. In early 1987, they raided the family house but he was not there. The police beat his father, mother, brothers and sisters, to try to find out where the Applicant was. The family told them they did not know so the police arrested his father and detained him for about one month.

4. In 1987, the Applicant organised a secret rally but someone informed on him and he was arrested. When he was arrested his father was released. He himself was beaten and tortured by the police and questioned about Sikhs who were wanted by the police. He claimed he was kept in the police station for a month, tortured and beaten and denied adequate food and water. After a month, the village committee organised a bribe to have him released. A condition was that he leave the district which he did. He claimed he went underground, living in various places. However he continued to address the public, advocating an end of Indian government of Sikh territory.

5. In 1988, the Applicant and several others arranged a secret rally at a village for a Sikh festival. About 10,000 people attended from different parts of India. The police learned about the rally from an informer so they raided the rally and required all BTF members to surrender or they would open fire, which they did. Several BTF members were killed at that time. The Applicant and others were arrested.

6. The Applicant denied to the police that he knew anything about radical Sikhs but the police reacted angrily and beat him. He was severely tortured and both his arms were broken. When the police thought he was unlikely to survive, he was taken unconscious and dumped in a field. He was found by a passer by and taken to a hospital. The passer by delivered a message to the Applicant's father who came to the hospital. The Applicant was there for two weeks.

7. On the advice of his father, he decided to leave India. He first of all went to another state where a friend made the arrangements for him to leave the country.

On 1 May 1995, a consultant psychiatrist examined the Applicant and stated that

"My history taking and examination would support the consideration of torture and that his life would be genuinely in danger if he were to be returned to India.

The psychiatrist suggested that further examinations by the organisation, Survivors of Torture and Trauma, would be in the best position to aid the Applicant. He advised that he had found physical scars which were largely consistent with the Applicant's account of beatings and torture. He regarded him as suffering from a serious level of post traumatic stress disorder. An X-ray done by the Diagnostic Imaging Group reported no evidence of acute bone injury although there was evidence of a healed fracture of the arm.

Prior to an interview with a Department officer, the Applicant submitted a letter, written in English and dated 28 February 1995, from a Mr. B, stating that a warrant for his arrest had been issued under the TADA Act. The letter includes the paragraph:

"You must be aware of the procedures and precautions to be taken by you which have been communicated to you through your family members whom I approached on telephone and personal visits."

A letter from a Dr. A also was submitted. This was dated 7 March 1995 and was addressed to whom it may concern. It certified that the Applicant was brought to the hospital in 'a severely injured condition, having external physical injuries in different parts of the body in April 1988.' It went on to state that the cause of the injuries was 'inhumane behaviour during the police custody' And that 'his condition was horrible'. It stated that the patient was discharged three weeks later.

The Department officer contacted the doctor named as the author of the letter. He was asked if he would have issued a medial certificate in March 1995 for a patient, overseas at the time, and whom he had treated in 1988. The response was that he was unable to vouch for the authenticity of the particular certificate as the medical records were destroyed after the routine checks by the tax department late in 1994. He stated also that he would not have treated a person who had escaped from detention, particularly as his clinic was very near a police station. He would not treat an escapee because all police cases were treated in public hospitals and he and his doctors would be in trouble if they did so.

Another document purported to be from a Dr. C of a nursing home. This stated that the Applicant was injured on his right hand and leg with a sharp instrument and was admitted to the nursing home in June 1987 and discharged in July 1987. It stated that he was injured by unlawful torture during police custody.

A letter signed by eight persons and dated 18 March 1995 purported to be from [details deleted under s431, Migration Act 1958] and named the Applicant as the holder of several positions within the Sikh political structure. The document asserts that the Applicant was arrested and held in police custody for 10 days in mid 1987 and that the police continuously hunt for him and 'keep vigil on his house'.

The Applicant was interviewed twice by Department officers. Following the first interview, his advisor made a complaint on behalf of his client that he had not been allowed the opportunity of clearly presenting all of his claims and that the interpreter was deficient. While not agreeing that the complaints were justified, a second interview was conducted in the interests of natural justice.

It has been preferable to cluster together under particular headings the information given in these two interviews and other submissions made by the Applicant to the time of his hearing before the Tribunal.

Location of family: At his second Department interview the Applicant stated that he did not know where his family was. His parents had been harassed by the police and so were in hiding. They sent him letters but he did not know from where they were sent. The Applicant's advisor stated that his father had been arrested in late 1995 and it was not known if his father was still alive. He stated that all his family took part in political activities.

Applicant's education: The Applicant provided information that he had completed twelve years of schooling. He stated that he used to take days off school occasionally to take part in political activities. At his second Department interview, he stated that he had sat for his examinations privately in 1988. He was enrolled at a high school which he named. The teachers knew him and helped him.

Applicant's passport: This carries information about the Applicant which appears to be correct. The photograph shows him wearing a Sikh turban. At his first Department interview, he stated that he was in hiding at the time it was issued. A friend went to get it for him. His mother sold her jewellery and his father some land to find the 50,000 rupees necessary to buy it.

At his second Department interview, the Applicant stated that his father had been arrested for a treasonable act and that his mother was in hiding. Mr D, his friend, had been killed in a 'fake encounter' in late 1995. While the Applicant's advisor had stated on his behalf that his father was arrested in a late 1995, one of the letters submitted stated it to three months earlier of that year. At this interview, the Applicant stated it was Mr D who got his passport for him. In response to questions as to why he would be issued with a passport if he was a wanted person, he responded that he had changed his appearance. It was put to him that there was nothing in the passport, including his photograph, to suggest that he was disguised. He responded that officials had been bribed.

Wanted poster: The signature on this document is almost illegible but the author describes himself as the S.H.O. of a particular Police Station. It asserts the Applicant to have been a member of the BTF and to have been active in February, March, April and May of 1988. It asserts he is wanted for murder and 'decoities', 'dead or alive', and that there is a reward of 10,000 rupees, apparently for information leading to his arrest, although the document does not state this. The accompanying photograph is not the same as that on his passport. He claimed that his lawyer in India got the copy of the arrest poster for him. He could not remember when it was sent to him.

An officer of the Document Examination Unit reported on 4 March 1996 that he regarded the poster, which he referred to as an arrest warrant, as 'an amateurish counterfeit prepared by a person with very little or no experience with the format of genuine arrest warrants.' The deficiencies noted were:

- the terminology 'warrant' is very vague and not that usually employed by the police

-no mention of the sections of the relevant penal code

- the term 'dead or alive' had not previously been encountered in connection with arrest warrants

-the document is not directed to any specific officer or group within the police.

Letter of 4 November 1995: This letter purported to be from the Applicant's mother and indicated that his father had been arrested earlier that year. The letter claimed that it was not known if his father had been killed and there were fears for his sister and brother. It was stated that the situation in the Punjab was very bad, 'worse than before'. The family house and the home of his aunt had been raided and his cousin was in jail. The letter alleged that his friend Mr D had been killed in a fake encounter in August.

Letter from Sikh official: This was dated 5 January 1996 and was signed by the writer. It stated that the Applicant was known to the writer and had been arrested at the time of the attack on the Golden Temple. He had been arrested again in mid 1987 and tortured. The police were searching for him and a notice had been put up in the village that a reward would be paid for his arrest. The letter stated that his family had been subjected to 'a lot of injustice'. It claimed that his sister had been severely tortured and escaped to England. At his hearing before the Tribunal he stated that his sister had gone to England and had married there, he thought in 1992. He was in occasional contact with her.

Letter from the village head: A letter dated 15 January 1996 purporting to be from the village head stated that he knew the Applicant and that the police had 'inflicted a lot of atrocities on his family'. Mention was made of his arrest after the attack on the Golden Temple, his 1987 arrest and the alleged arrest of his father in late 1995.

Letter from Mr D: A letter dated 30 June 1995 purported to be from the Applicant's friend Mr D, a BTF area commander. It stated that the Applicant's mother, sister and brother were staying with him. The letter stated that his father had gone with others to the office of the deputy commissioner in order to get arrested 'in memory of these martyrs'.

Position in the SSF: At his first interview with a Department officer, the Applicant stated that he held an important position with the SSF. He did not use any violence but went from village to village to promote the cause of Khalistan. He joined it in 1984 and belonged to the BTF faction. In Australia he was a member of the International Sikh Student Federation.

It was put to the Applicant that there were difficulties in the application of the Refugees Convention if he was a member of a terrorist organisation and had in fact participated in murders as the poster alleged. He claimed it was a fake poster in that it was a police attempt to frame him. He had not been a part of the militant armed wing of the BTF but of the political wing.

At his hearing, the matter of his failure to apply for refugee status when he first went overseas or in Australia until after the passage of seven years was discussed with him. The Tribunal indicated that it could be expected that a person fleeing from a place or situation of persecution would seek protection at a reasonably early date after arrival in a country in which such protection could be given. He stated that he had obtained his first overseas visa on the grounds that he was to be a student. However, he did not attend any classes of any sort once he arrived there. He did not know how the visa was obtained as his friend Mr D made all the arrangements for him. Mr D's brother had been killed by the police and that was why he helped him. It was put to him that the obtaining of a passport and a visa were not very simple matters and that his passport was clearly his and contained his details. This suggested that there had been no attempt to hide that he was leaving India and that there was no particular reason to not apply for a visa in the normal way. It was put to him that he left India on his own passport at a time when he claimed he was wanted by the police.

The Applicant stated that he could not remember when he had the photograph for his passport taken. It was his friend Mr D who took the photograph. It was put to him that it seemed odd that Mr D, who was at some apparent risk from the authorities as his brother had been killed, should undertake this sort of activity openly. The Applicant's response was that if he himself had come out of hiding he would have been shot dead. He had fled to another state after he had been arrested and beaten by the police.

It was put to him that he had indicated to the Department that he had been released from hospital in May 1988 and that this date did not fit with the dates he was giving to the Tribunal. He was reminded that this was a date he had given to the Tribunal. He responded that he was unsure of some dates as he was confused because of the treatment he had received.

The matter of medical treatment was raised with him, particularly the fact that he had not followed up on the suggestion of the psychiatrist that he should contact an organisation specialising in the effects of torture and trauma. It was put to him that a one and a half hour assessment was not of itself completely convincing as to the source of any trauma he suffered. He responded that he had not felt sufficiently confident to do anything more. He was simply trying to survive and he lived by himself. He blamed a person advising him at that time for not having helped him. Later in the hearing he stated that he did not trust some members of the Sikh community in Australia. He feared that there was a lot of 'dobbing in'.

The question of his age at the time of the alleged events was discussed with him. He stated that his teacher had taken himself and six others to the Golden Temple in June 1984 and they had slept in the temple overnight. His father was in favour of Bhindranwale but he was not sure in what way he expressed his support. Lots of people were kept inside the temple by the police and army and then the attack resulted in a great loss of life.

The consequences of that attack on him were discussed. The matter of his young age and his claims to have been a leader and activist were discussed with him. It was put to him that it was difficult to accept that his parents would have supported his ventures into activism when he was little more than a child and the results could be so harmful. He stated that he had gone back to school but many of his teachers were in favour of an independent Khalistan and so supported him going round to villages and promoting the cause.

He claimed he was arrested twice by the police. The Tribunal raised with him the possibility that his arrests were in fact a legal response to his association with the BTF which was an organisation itself promoting violence and terror. There was no automatic international protection offered to people for their participation in violent activities even if they were at risk of arrest in their own state. The Applicant responded that he belonged to a peaceful section of the BTF and had only exhorted people not to co-operate with the government.

The question of the current situation in the Punjab was raised with the Applicant. It was put to him that the situation was considerably different from that which he knew in the 1980s and that a number of reputable sources had indicated a return to a considerable degree of stability. The majority of Sikhs even in the Punjab live in relative peace. The Sikh dominated party, the Akali Dal, was the dominant voice in Punjabi politics today and was an indicator that Sikhs were not prevented from having their concerns aired in the political arena. He responded that the Party was very much under the control of the police. There was serious and systematic abuse of Sikhs. However, some Sikhs worked for the government and they were against the establishment of an independent state. There was heavy censoring of reports coming our of the Punjab and so outsiders could not have the full picture. Even the reports from Amnesty International were incomplete. Anyone connected with the Khalistan cause remained at risk.

It was put to him that many Sikhs lived peaceful and relatively prosperous lives in other parts of India and so re-location must be considered to be a possibility for him. He stated that he was not safe anywhere in India because he was a known activist. The Applicant's advisor put to the Tribunal examples of what he called India's abysmal human rights record. There was evidence of systematic abuse of those in custody and that anyone connected with the Khalistan cause was faced with a real chance of being seriously abused.

It was claimed that a further difficulty with re-locating was that the Sikh communities were well-established in other parts of India and were suspicious of young Sikhs from the Punjab. They were obliged to let the police know of any such people coming to their areas. If this happened to the Applicant then enquiries would be made and his identity as an activist would be revealed. He could be kidnapped and taken back to the Punjab.

Statement from Mr. E: The Applicant submitted a document from Mr.E who stated that he had returned to India for three months in 1997. He had expected to find that the situation there was back to normal but that was not the case. At the request of the Applicant he had tried to find out about his family members and he had gone to his home village. He was told that they were in hiding, always on the move because they feared the police. It was alleged that the Applicant was on the police wanted list and that if he returned to India, then probably the police would set up a fake encounter and kill him.

Other submissions: The Applicant submitted some newspaper articles concerning the current situation in the Punjab. Among these was an example of a Wanted poster, which had photographs of three Sikhs and gave precise information about their appearance and information about official contact to be made on any sighting.

Another article from a Punjab monthly newspaper, dated August 1996, reported on the Supreme Court's decision to re-open an investigation into the disappearance of the human rights activist, Mr. Jaswant Singh Khalra. It stated that nine police officers had been charged with his kidnapping. A number of other articles, mostly from the weekly London-based magazine Des Pardea reported on accounts of the arrest of Sikhs and their mistreatment by the Punjabi police. An interview with a leading lawyer, Shri Ranjan Lakhanpal, was included. He told an England-based Sikh editor that there were still many abuses of human rights by police in the Punjab. He quoted cases of young people being kidnapped and remain missing and the failure of the Punjabi of national governments to do anything about bringing police to justice.

In order to be a refugee under the Convention, it is necessary for the Applicant to have a well-founded fear of persecution for reasons of at least one of the five grounds listed in that Convention. The Applicant has claimed that his fear of returning to India is founded on the persecutory treatment he received as a Sikh activist in the Punjab in the 1980s and that it would be unsafe for him to return to his country of nationality.

Serious doubts about the Applicant's credibility were raised by the Minister's delegate and have not been eliminated by the evidence he has submitted to the Tribunal. There is no single factor which is determinative in undermining his claims but rather an accumulation of matters. These include his failure to seek protection in the first overseas country he went to and his application in Australia only after seven years, the fact that all documentary evidence submitted dates from 1995, only after he made his protection application, some discrepancies in dates, his claim to have been a significant and well-known activist when he was in his adolescent years and the fact that he left India on a valid passport at the very time when he claimed he would have been wanted by the police.

The Applicant as a subject of state-supported violence: I accept that he was present in the Golden Temple in June 1984 when it was the site of a violent attack by the Indian authorities. His description of the carnage was convincing and I accept that this was a traumatic event for him. I am less convinced by his claim that he was among those children kept in custody for six months. As indicated by the Minister's delegate, they were the subject of national and international protests so that there was a considerable degree of publicly-known information about them. Like the delegate, I could not find evidence that they were held anywhere other than Ludhiana and not Rajistan as claimed by the Applicant. While their detention was a serious abuse of their rights as children, there is an absence of evidence of torture of the children as also claimed by the Applicant. However, it must be said that the Indian authorities acted in a manner which tended to conceal rather than reveal their actions against Sikhs and so for the purposes of this determination, I accept that he was held by the authorities for some time after the attack on the Golden Temple. I consider that either being present in the Temple at that time or having also been taken into custody as a consequence of his presence was sufficient to establish a strong subjective fear of the authorities which has remained with him.

The Applicant's active role in Sikh pro-independence movements: The Applicant was convincing in his claim that he was a supporter of the independence of his native state and he has continued to hold that view even while in Australia over a long period of time. I find the level of leadership and office-holding claimed by the Applicant to be less convincing. At the time of the attack on the Golden Temple he was a young teenager. He was still in his teens when he left India and had just completed his high school examinations. In his submissions, he associates himself with senior and well-known leaders whose public profiles were based on long periods of activism. It is possible that he joined the BTF, the most militant Khalistan group of the time. It is far less plausible that he joined it in 1987, as he has claimed, and immediately became a leading figure, associating in its activities alongside its founder. I find the letter purportedly from a number of members of the Sikh political community unconvincing in its statement that the Applicant was a 'general secretary' of the BTF. That is not a claim the Applicant has made. The office he held, he claimed, was something else. Indeed it is the very large claims made on his behalf in these letters, dating only from 1995, which make them unconvincing as reliable evidence. I return again to the point that he was a very young lad at the time and the persons he has named as his colleagues were the founder and senior leaders of the BTF.

The Applicant claimed that as a member of the BTF he advocated only non-co-operation actions and not violent ones. Yet he also claims to have been associated with the founder of the BTF and certainly not a promoter of peaceful change. I cannot find evidence to support the Applicant's claim that the BTF had two different faces, one a peaceful profile and the other the much better-known militant wing. If the Applicant had been an area commander of the BTF, which I do not accept, then he would have been obliged to support the BTF's methods and aims which were militant and degenerated into violence against ordinary residents of the Punjab.

Some of the inconsistencies in the Applicant's evidence were noted in the decision of the Minister's delegate. Inconsistencies could be expected from a person who was very young at the time of these events and then has been out of India for some years. It is less understandable that a person who claimed to have taken a prominent and leading role would have forgotten or misunderstood the situation of the group to which he claimed he belonged and the disposition of its various leaders over the years.

Some of the discrepancies in his narrative of his arrests may seem minor individually. However, they add to the assessment that they are unreliable. I note, for example, his statement to the psychiatrist that he was arrested in 1987 while returning from his college. In his statement accompanying his application for a protection visa, this is described as being a consequence of the arrest of his father in his stead. He was arrested, he claimed, after being found at a 'secret rally' following which his father was arrested.

Delay in applying for recognition as a refugee: The Applicant arrived in Australia only after he had spent a month in another country. A considerable degree of planning went into the obtaining of his visa to enter that country and that is one of the reasons why I do not accept that he did not know that he could apply for refugee status there. It seems unlikely, if he was in fear for his life in India, that he would not have asked someone whether it would be safe for him to stay there. I note also that he claimed to have met other Sikhs while there including two particular men who went back to India and were, he claimed, arrested at Delhi Airport. Again it seems most unlikely that they would not have talked of options available in that country.

This failure to seek asylum in a country which clearly does fulfil its obligations under the Refugees Convention, is not fatal to the Applicant's cause. I accept that there is a larger Sikh community in Australia than in the former country and that his intention all along was to come here. However, it contributes to the doubts raised as to whether he was actually fleeing particular persecution of himself or whether he was escaping from the very difficult general situation which existed in the Punjab at the time.

However, even if the most favourable interpretation is put on his failure to seek sanctuary in the first country, the very long delay in seeking official protection in Australia is a serious matter. He arrived here in 1988 and it was not until seven years later that he applied to be a refugee on the ground of events which had happened in those earlier years. I accept that he might have heard from other Sikhs that there could be difficulties in being granted a right to remain in this country and that this contributed to his decision not to look for legal ways to remain here.

I accept also that he was at that time in an anxious state. It is difficult to read back the assessment of the Applicant as a sufferer of post-traumatic stress disorder without any evidence from that particular time, that is, of 1988. The medical assessment dates only from 1995. However, I accept that when he arrived in Australia he was frightened of returning to India and that whatever his reason for coming here, he avoided contact with the Australian authorities because he wished to remain here and doubted that he would be given permission to do so.

Passport and visa: The fact that the Applicant's passport was issued, in his own name and with his own personal details, just at the time when, he claims, he was most noted as an activist in the Punjab seriously undermines his claim that he was forced to flee India for his own safety. He claimed that he had only recently been arrested along with senior well-known activists. I am not satisfied that a young male Sikh, known to be an activist, could have been granted a passport at that time. It assumes no contact between various parts of government at a time when there was very great fears about Sikh activism in the Punjab. Had the Applicant been a wanted person at that time, with any known connection with the BTF, it is implausible that he could have been granted a passport.

I have taken into account his claim that a friend did all the necessary communication for him. While the fact that he gave two different names for this friend, is a small incongruous detail, of much greater significance is that the passport is in his own name and bears his own details and photograph. It was issued from the office in the very place to which the Applicant claimed he feared to return. It names his father as his next of kin. The issuing of this document simply does not fit with his account of the events in the preceding month when he claimed he was left for dead in a field after tortured by the police.

Timing of various documents from India: An aspect of the credibility questions raised by the Applicant's submissions is that the documents purporting to show that he was at risk if he returned to India all date from the time when he made his application for a refugee. This raises the question of whether they have been formulated to promote his chance of being so classified. It would have been more reasonable that such documents would have been more related in time to the actual events in which he claimed to have participated.

Authenticity of the documents submitted: Apart from the fact that they all date from the period after the Applicant applied for a protection visa in Australia, there is a difficulty in authenticating that they actually have their origin in India. The Applicant was unable to supply any envelopes which could have given some degree of information about their source and which could have allayed the suspicion that their provenance was Australia rather than India. The document for which checking was made by the Department in India, the medical certificate, was disowned by the person who was alleged to have issued it.

Wanted poster: The Document Examination Unit apparently treated this as though it was an arrest warrant rather than a poster and so not all the comments made on it are relevant. However, I do not accept it as genuine even as a poster. The photograph of the Applicant appears to have been taken later than that for his passport yet the Applicant has stated that the passport photograph was genuine and was taken of him by his friend Mr D in 1988. It is not clear how the Indian authorities could have obtained a later photograph of the Applicant who left India in that year and who has claimed that he has had little contact with his family, the only obvious source of a later photograph.

The example of a Wanted poster submitted by the Applicant also contrasts with that he has submitted relating to himself. The former is well-constructed, does not contain spelling mistakes and contains clear information on which authorities to contact if the wanted men are seen. Each man is described in terms of height, age, and other distinguishing marks. The poster submitted by the Applicant fails all these tests. I agree with the Document examiner that it is amateurish in its production. I have taken into consideration the Applicant's claim that this is due to its being the product of a local police station. I do not accept this. A person wanted on serious charges as indicated in the poster would be wanted by the Indian authorities per se, not merely a local police station, and it is reasonable to assume that information on such a person would be relayed in an official-looking manner and contain information, such as a physical description, which would be of some use. I find the poster to be fraudulent.

Letter from Dr. A: The letter does not read as an official document although that by itself would not be sufficient for it to be assessed to be fraudulent. However, the rejection of the letter by the alleged writer means that it cannot be given any weight except in a negative sense of raising questions about the authenticity of the Applicant's claims.

I am satisfied that the Applicant has suffered a trauma from being a young person in the Punjab at a time of great violence. I have accepted that it was possible he was present in the Golden Temple at the time it was attacked by government forces and, perhaps, even taken into custody at that time and maltreated. I am unable to accept the main core of the remainder of his claims to have been a known activist for the SSF and, importantly, the BTF. I do not accept the letters and other documents, dating from 1995, which the Applicant has submitted to support his claims.

I have considered the Applicant's claim that his family has been forced into hiding because of police harassment of them which has its source in his own activities. As I have not accepted that he has been a known political activist nor the victim of the arrests he has claimed in 1987 and 1988, I do not conclude that there are serious and recent problems for his family which make it unsafe for him to return to India. It is difficult to see why police would harass the family about his whereabouts when the government office in their own town issued him with a passport in 1988, an obvious indication that he intended to use it to travel overseas.

I have considered the statement submitted by Mr. E. It contains the comment that the Applicant had asked him to see about the well-being of his family as he 'has had no contact with his family since leaving India.' This clearly is at odds with the Applicant's submitted evidence of family letters and his claim that it was his father who obtained a number of documents for him. I find this evidence to be unreliable.

The letter purporting to be from the president of the village gurdwara stated that his sister had been severely tortured and had escaped to England. However, at his hearing before me, the Applicant stated that she had married and gone to England. No reference was made to any torture.

Real chance of persecution: The above findings are relevant to a consideration of whether the Applicant's fear of returning to India is well-founded and that there is a real chance he would suffer persecution for the reasons he has claimed.

He has been challenged by information from the Department of Foreign Affairs and Trade (DFAT), from Amnesty International and other sources about the current situation in India. I have considered his claim, supported by newspaper reports he submitted and the statement from a friend who recently went to India, that there continue to be human rights abuses in the Punjab. I accept this information as valid, although with the qualification that there has been a noticeable decline in the level of such abuses and a gradual, but increasing, policy of government, both state and national, to take action against those who commit such abuses, usually the police.

Given that the Applicant is fearful of returning to the Punjab and that there continue to be instances of the abuse of its residents by the police, it would be unreasonable to insist that he should dismiss his fears and return there to live. However, the question of his safety relates to the whole of India rather than to a part.

Australian courts have considered the conditions under which it is reasonable to expect persons to re-locate within their own state. In the matter of Randhawa v MILGEA [1994] FCA 1253; (1994) 52 FCR 437, Black CJ cited international refugee law expert, Professor James Hathaway, on this point:

"A person cannot be said to be at risk of persecution if she can access effective protection in some part of her state of origin. Because refugee law is intended to meet the needs of only those who have no alternative to seeking international protection, primary recourse should always be to one's own state." (Law of Refugee Status, Butterworths, p.133, cited in Randhawa at 441).

The judge also endorsed the following observation of Hathaway:

"The logic of the internal protection principle must, however, be recognised to flow from the absence of a need for asylum abroad. It should be restricted in its application for persons who can genuinely access domestic protection, and for whom the reality of protection is meaningful." (Hathaway, p.134, cited in Randhawa at 442; cited also by Beaumont J at 450-1)

Physically India is a very large country. Demographically, the Sikh population is spread across a number of its regions. The Applicant is not confined by custom, history or law to the Punjab. There are no legal barriers in place to prevent him from re-locating in another part of the country. Sikhs occupy positions in government, in the armed forces and in the professions. They are not refused the right to seek education or employment. I accept that the movement for independence in the Punjab and the assassination of Prime Minister Indira Gandhi by Sikh members of her bodyguard jolted many Indians into regarding Sikhs with suspicion and hostility. This is unfortunate but it has not translated into an on-going campaign against members of this minority.

The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status acknowledges the sort of situation from which the Applicant has come. Paragraph 19 states that:

"The fear of being persecuted need not always extend to the whole territory of the refugee's country of nationality. Thus in ethnic clashes or in cases of grave disturbances involving civil war conditions, persecution of a specific ethnic group may occur in only one part of the country. In such situations, a person will not be excluded from refugee status merely because he could have sought refuge in another part of the country, if under all circumstances it would not have been reasonable to expect him to do so."

This passage was cited by Beaumont J in the Randhawa judgement (at 451). It raises the matter of the reasonableness of the option of re-location. As observed by Black CJ in the same judgement:

"...a person's fear of persecution in relation to that country of nationality will remain well-founded with respect to the country as a whole if, as a practical matter, the part of the country in which protection is available is not reasonably accessible to that person." (at 442)

I am satisfied that the Applicant could safely re-enter his country through the major airport of New Delhi. I have considered his claim that other Sikhs, returning from overseas, have been arrested at the airport. While I have been unable to locate information to support his claim that two Sikhs who had been in the overseas country were so arrested, I accept that it is a possibility and that such action would be initiated in some instances by a suspicion or evidence that persons were linked with militant organisations. As I have not accepted the Applicant's claim to be identified with militant organisations, I do not find that he faces a real chance of arrest on his return to India.

I have considered also whether it is reasonable to expect that he could remain in Delhi or move to some part of the country other than the Punjab. He has been out of India for almost ten years. He presumably has developed a capacity to support himself and to arrange for his own needs to be met. He has a sufficient education in that he graduated from high school. He is now an adult. While Punjabi is his first language, he also speaks English. People of his ethnicity and religion are to be found in a number of different locations in India and so he would not be without the comfort of people of his own kind and of spaces within which he can exercise his right to his religion.

As indicated above, I have not accepted the Applicant's evidence that his family has been at such risk from the police that they have gone into hiding. However, even if he has lost contact with them, he is an adult male who has lived without the support of his family for ten years. It is reasonable to expect that he can use his own capacities to re-establish himself even without family support.

I have accepted that the Applicant left India with a strong subjective fear of persecution and that this stemmed from the violence in the Punjab at that time. I have not accepted his claims to have been a person constantly caught up in these events in a particular and notable way. I have concluded that it is safe for him to return to India without facing a real chance of persecution.

Having considered the evidence as a whole, the Tribunal is not satisfied that the Applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the Applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa.

The Tribunal affirms the decision not to grant a protection visa.