Conclusions of the Court
23 I have already set out the grounds on which the applicant seeks judicial review. Much of the focus of the oral and the written submissions of both the solicitor appearing for the applicant and counsel for the Minister was the status and relevance of the documents sought to be tendered on behalf of the applicant. I do not view the documents as tending to prove the non-existence of a fact that was a fact the Tribunal based its decision on: see s 476(4)(b) and Mohammad v Minister for Immigration and Multicultural Affairs [1999] FCA 508 or relevant to establishing what might have been revealed by further inquiries the Tribunal should have made: see Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170 cf Malik v Minister for Immigration and Multicultural Affairs (1997) 47 ALD 27. The documents would, on other grounds, be inadmissible: see Ozberk v Minister for Immigration and Ethnic Affairs (1998) 79 FCR 249. I reject the tender.
24 I turn now to the grounds of review. I think it can be fairly said that the amended application raises a ground concerning the view the Tribunal took of what might constitute persecution of the applicant for reasons of political opinion. It is to be recalled that the applicant arrived in Australia in September 1996. Reference has already been made to his account of events in 1992, 1993 and 1994 concerning campaigns he was involved in against the growth of prawn farming, the operation of tanneries and the use of bonded child labour. In this period the applicant said he was hospitalised for a month as a result of serious injuries he received when assaulted by hoodlums hired by the owners of prawn farms. He also said he was assaulted by people acting on behalf of the tannery owners. Others were assaulted by people hired by the owners of a factory who, it appears, were using child labour. The Tribunal dealt with these matters in the following way:
The Applicant claims that he encountered difficulties with the owners or manages of the prawn industry, tanneries and match factories because of he took legal actions against them and because of his support for the poor in their struggle for improvement in their life. The Tribunal accepts that he may have encountered difficulties by taking on the cause of the poor. However, action against him was not a course of selective and systematic conduct directed at him for a Convention reason. Reprehensible as the behaviour is, the Tribunal is not satisfied that the conduct can be seen as part of a course of systematic conduct but rather acts of intimidation relating to his specific actions. The Tribunal does not accept that these incidents now give rise to a fear of persecution in the sense of the Convention. His difficulties relate to the particular circumstances of each action in which he was involved.
25 It is clear, on a fair reading of this part of the Tribunal's reasons, that it accepted what the applicant had said about these matters though the Tribunal was critical at a later point in its reasons of other aspects of the applicant's account of his experiences in India before arriving in Australia. The Tribunal did not say expressly it accepted that the applicant was assaulted twice, once seriously leading to hospitalisation, and was under threat of assault on another occasion. However, it spoke of the "reprehensible … behaviour" of those who took "action against (the applicant)" and there is little doubt that it accepted that the activities of the applicant had resulted in harm or a threat of harm to him of the type he had described.
26 In my opinion, the conduct that led to this harm was arguably the expression of political opinion by the applicant. The Convention can apply to a person who is seen as a threat by a group unrelated to the government if the threat arises by reason of the person's political viewpoint and is at risk of harm at the hands of that group: see Saliba v Minister for Immigration and Multicultural Affairs (1998) 159 ALR 247 at 254. At the very least arguably, this was the position the applicant had been in: see also Voitenko v Minister for Immigration and Multicultural Affairs [1999] FCA 428. If that was so, then the approach of the Tribunal in characterising the harm suffered as not being part of selective or systematic conduct states too narrowly what is comprehended by the notion of persecution. One act of oppression may be sufficient: see Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 429-430. As the Full Court said in Abdalla v Minister for Immigration and Ethnic Affairs (1998) 51 ALD 11 at 20:
In substance the tribunal decided, in the present case, that the recurring pattern of communal violence, which it found to exist in Somalia, did not amount to persecution because there was no systematic course of conduct. The requirement, in our view, was too widely expressed. Where there is a recurring pattern of violence towards a person on a Convention ground, there is no reason why such conduct may not constitute "persecution". Clearly "persecution" involves more than a random act. To amount to "persecution" there must be a form of selective harassment of an individual or of a group of which the individual is a member. One act of selective harassment may be sufficient. The fact that a recurring pattern can be loosely described as communal violence or even civil war does not mean that it cannot amount of "persecution". It is necessary to examine the situation further in an attempt to determine the purpose which gives rise to the violence or danger.
The decision in respect of whether recurring communal violence amounts to "persecution" depends on whether there is a purpose behind the recurring pattern which is referrable to a Convention ground.
27 What the Tribunal has, in my opinion, failed to recognise in the extract from its decision just quoted, is that the social and political activism of the applicant over a long period led to the applicant being harmed or threatened with harm. It is harm which, on that much of the applicant's account accepted by the Tribunal, the state has been unable or unwilling to prevent. To dismiss the harm as not part of a course of systematic conduct and only "acts of intimidation relating to (the applicant's) specific actions" involves a failure to recognise that the harm he experienced might constitute persecution by reason of his political opinion. This meant the Tribunal failed, in substance, to consider adequately the ultimate question of whether the applicant had a well founded fear of persecution were he to return to India. The persecution which arguably arose from the expression of applicant's political opinion in the past might well found conclusion that there is a real prospect of persecution in the future. Ultimately, however, that will be a matter for the Tribunal to determine. The Tribunal was, in my opinion, unduly distracted by the question of whether, as a matter of fact, the applicant faced criminal proceedings and possible imprisonment on charges of attempted murder, sedition and conspiracy were he to return to India. What it failed to recognise was the potential significance of the applicant's long history of social and political activism and the deleterious consequences he had suffered as a result. In so doing it committed an error of the type identified in s 476(1)(e). I have, in the preceding discussion, spoken of the Tribunal having failed to recognise or consider certain matters. I did not do so pejoratively as some of the authorities I have referred to which clarify the law are only recent and post date the Tribunal's decision.
28 These conclusions are sufficient to dispose of this application for judicial review. I set aside the Tribunal's decision and remit the matter to the Tribunal for further consideration.