SZKPB v Minister for Immigration and Citizenship

THE APPELLANTS' CLAIMS FOR PROTECTION VISAS 5 The appellants are citizens of the Republic of India and are husband and wife. The husband set out in his application for a protection visa that he was a Christian of the Catholic denomination. In his claims, among others, he said that in early 2006, after he had returned from Kuwait to Kerala State he commenced a supermarket business. At the opening a local priest blessed it. He claimed that the next day he noticed someone had damaged a sign and the building's walls and had complained to the police. He claimed that the business began running and eventually after about a month, it began to run quite well. 6 About 500 metres away from the supermarket, there was a famous Hindu temple for or at which there was a festival each year. The husband claimed that he was approached by committee members of the temple for donations to the festival. He claimed to have offered them a donation in 'a good amount' but they were not satisfied with his offer. A young member of the committee named 'Babu' asked for more money and started to complain to the husband. He told Babu to leave the shop and shortly afterwards they fought. The husband paid the money that he had offered. He claimed that the next day he made inquiries about Babu and found that he was one of the youth division members of the BJP, and a member of a subgroup associated with the BJP, called the RSS, of which the husband claimed Babu was a 'criminal leader'. 7 The husband claimed that the neighbouring business people became jealous of his business and about a week after the festival began, Babu and others came to his shop asking for cigarettes, obtained them, but did not pay any money. Babu and his associates then assaulted the husband and his staff. The husband claimed that he reported the matter to the police and that the next day the police investigated the matter, arrested Babu and placed him in the local lock-up. He claimed that within an hour Babu had been released from the lock-up because of political influence exerted by local BJP leaders. 8 Immediately following the release, the husband claimed Babu came straight to the shop and threatened him, saying that within a week he would cause the shop to close. The husband claimed Babu and his associates returned later that night and started to disturb customers, leading to the shop closing early. About four days later, the husband claimed the local leader of the BJP came to him and warned him that they (the BJP) would not allow anyone who was working for the BJP, especially Babu, to be harmed. The husband claimed that the BJP politician also accused the husband of trying to harm Hindu business people in the area and that he was soon going to face punishment for putting Babu in gaol. He claimed the BJP political leader threatened him and told him to close his shop and leave soon. 9 Further, shortly afterwards, Babu and some associates came to the shop and again caused trouble for the appellants' customers. The police came and removed them and sent them away but later that night returned and asked the husband to close the shop because a fight had broken out in the temple involving Babu. Babu apparently was killed at that time. Initially, the husband was investigated for any association he had with that murder, albeit he later was not charged. He said that the police had told him that they had no evidence to arrest him, but that leaders of the BJP were seeking to exert their influence to have him arrested and that RRS volunteers were trying to harm him. 10 After that, over the next little while, the appellants claimed that the supermarket was ransacked, and that the landlord terminated the lease and refused to allow the appellants to remove their remaining goods. The husband also claimed that late one night he heard noise outside their house, opened the door and came out with his wife where they were both assaulted, and his wife was injured by being stabbed with a sword. Neighbours came, the police arrived and ultimately they were taken to hospital, but no one was arrested. 11 The husband claimed that after these experiences he realised that he was not able to remain in Kerala due to the threats from the BJP and the RSS and decided to go to Mumbai to join his uncle's business dealing with the export of garments. He claimed that his brother had been prevented from removing any goods from the supermarket. He claimed his brother had been told by RSS people that he (the brother) was not allowed to open the shop, and they had inquired of the brother where the husband was because they asserted the husband was involved in the murder of Babu. The husband claimed that about three weeks later, in Mumbai, he met a friend of Babu and explained to that friend his non-involvement in Babu's demise. He claimed that Babu's friend invited him back to his house. When he went there other people were in the house. The friend shouted suddenly that the husband was the man who had killed Babu and that all should kill him. He claimed he had to been stabbed in his stomach and thigh but escaped and was admitted to hospital. From there he decided he and his wife would seek to flee to Australia.

DELEGATE'S SUMMARY OF CLAIMS 12 The delegate summarised the appellants' claims, noting that in Kerala the majority of the population was Hindu, although 20% of the population were of Christian belief. The delegate noted that the RSS was an extremist Hindu organisation which promoted Hinduism and described Christianity 'as a dangerous foreign faith that must be eradicated from India'. 13 The delegate noted country information had indicated that since 1998 or 1999 the BJP and RSS and their affiliated organisations had been implicated in incidents of violence and discrimination against Christians and Muslims in India and that the RSS had been an organisation which targeted Christians in Kerala, particularly in 2005 when Christian groups had emerged to assist victims of the Boxing Day 2004 tsunami. 14 The delegate said: 'It is against this background that the applicant, a Catholic, has claimed that he has been directly threatened and attacked by members of the BJP and the RSS because he was falsely implicated in the death of a BJP member.'

THE TRIBUNAL'S DECISION 15 The tribunal set out in its statement of decisions and reasons, under the heading, 'Claims and Evidence', that it had before it the Department's file and had had regard to the material referred to in the delegate's decision and other material. It noted that the appellants had claimed fear of being persecuted in India for what they regarded as Convention-related reasons of religion and imputed political opinion. It then recorded: 'The applicants are Christians from the state of Kerala. Their claims involve harassment by an evidently corrupt and coercive businessman who was Hindu and who had connections in the Hindu-centric RSS party in Kerala.' (emphasis added) 16 The tribunal then recited a considerable portion of what appeared to have been evidence before it. It also summarised some claims the appellants made in their applications for a protection visa. It recorded a summary of a number of questions it asked concerning the motivations of Babu and his supporters at the time of the claimed harassment of the appellant and his business. It then summarised the husband's answer that the motivation behind the actions of Babu and his cronies was to protect the market share of their friends. The tribunal put to the husband that on that evidence it was difficult to see his 'religion' or 'political opinion', real or imputed, as essential and significant factors in the situation involving the harm described. Essentially the tribunal said that it had questioned the relevance of the appellants' 'claims to the Convention' [sic]. The tribunal recorded that in response the husband did not argue or illustrate a Convention nexus but instead argued the gravity of the danger he and his wife faced in the relevant locations over the period described. 17 The tribunal also summarised the applicant's answer to questions about the motivations and actions of Babu's cronies and supporters after Babu's death. It noted that the husband had said that he believed that: '… in the eyes of Babu's followers, both his religious background and his history as a person who did not want Babu to close or exploit his business gave him a motive to kill Babu.' 18 In its findings and reasons the tribunal said: 'Although elements of the Applicant's oral evidence appear exaggerated, the Tribunal accepts that the history involving Babu and his supporters is a generally factual one. However, the Tribunal finds that whilst the religion and politics of the perpetrators provides a backdrop to the events described,the essential and significant factors motivating the harm described in this application are individual personal, commercial, and criminal factors, and not Convention related factors.' (emphasis added)

ARGUMENTS ON APPEAL 19 The appellants filed written submissions in the appeal. Because they had not been provided to the legal representatives of the Minister, I was asked by him to adjourn the hearing part-heard. Those written submissions articulated a difficulty that I had also perceived when I read the material in preparation for the appeal. In essence the appellants' submissions claimed that the husband was a Christian running a business among Hindus and that he had been constantly harassed and tortured by Hindu fanatics and thus feared persecution. The submission said that the tribunal had identified the wrong issues and converted the appellants' claims to be ones that were based on individual, personal, commercial and criminal harassment, rather than Convention-related harassment.

CONSIDERATION 20 The tribunal accepted that the history given by the appellants as to their involvement with Babu and his supporters was generally factual. 21 In describing the appellants as having made a claim that Babu was 'an evidently corrupt and coercive businessman who was Hindu' the tribunal does not appear to have referred to any claim actually made by the appellants to the effect that Babu was in fact a businessman. Their claims were that he was a member of the temple committee and/or the RSS, and thus associated with the BJP political party. 22 The tribunal's characterisation of Babu as a 'businessman', as forming part of the appellants' claims, does not appear to me to reflect any claim they were making at all. The obligations placed on the tribunal require it to identify the claim or claims made by an applicant for review of a decision under s 414 of the Migration Act 1958 (Cth). There was, in the material in the appeal papers, a clearly articulated claim made by the appellants that Babu was a member of the temple committee and had demanded money from the husband for the Hindu temple. That demand was made in circumstances where the appellant was a Christian and was perceived by Babu to have made an inadequate donation which led to a violent altercation. From that moment on, the appellants claimed to have been harassed by Babu with the support of local BJP politicians and the majority Hindu population. The tribunal accepted the facts underlying those claims. The claims appear to raise a question as to whether Babu was interfering with the appellants for the very reasons which the appellants claimed, namely questions of religion or political opinion, real or imputed. 23 The Minister argued that the use of the word 'businessman' in the tribunal's characterisation of the claim involving Babu was a mere error of fact. He said that it was not open to a court, on judicial review, to correct errors of fact: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at 16 [53] per Black CJ, French and Selway JJ. The Minister also submitted that it was important that the Court approach the review of the administrative decision in a way that did not engage in over-zealous consideration or appraisal of the reasons of the tribunal, which need not necessarily have been constituted with a lawyer: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. 24 The acceptance by the tribunal of the history given by the appellants involving Babu and his supporters, as being generally factually correct, required it to address the actual claims he had made in that context. The tribunal's reasons show that it had in mind, correctly, the question of whether an act or acts of persecution claimed by the appellants was or were the essential and significant reason or reasons for the persecution, as required by s 91R(1) of the Act. 25 The reasoning of the tribunal was to say that the difference between the religion and politics of the appellants, on the one hand, and of Babu and his supporters as perpetrators of the harm the tribunal accepted had been suffered by the appellants, on the other hand, was only a 'backdrop' to the events described. It then asserted that the essential and significant factors motivating the harm were individual, personal, commercial and criminal factors and not Convention-related ones. 26 If a businessman in Babu's position engaged in the conduct complained of, that may have provided a factual basis for that conclusion of the tribunal. But by characterising Babu as a 'businessman', when no such claim was made, the tribunal failed to address the appellants' claim. I am of opinion that, on the evidence, the appellants' claim was divorced from any business of Babu other than his membership of the temple committee of a different religious faith. Nor did the tribunal consider the claim of the circumstances that Babu and his supporters were both members of the Hindu faith and members of a political party or its associate organisation which, as the tribunal noted, was a nationalist Hindu organisation which had been described by the delegate in his reasons as having targeted Christians in Kerala. 27 In my opinion, it was arguable that the tribunal failed to respond to a substantial, clearly articulated argument relying upon established facts which it had found. This could amount to a constructive failure to exercise its jurisdiction, as explained by Gummow and Callinan JJ in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at 394 [24]-[25], Kirby J at 407 [89] and Hayne J at 408 [95]. Another way of approaching the error which the tribunal arguably made in this case may be that it just failed to ask itself the correct question: Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at 506 [76] per Gaudron, McHugh, Gummow, Kirby, and Hayne JJ. In either event it is arguable, in my opinion, that the tribunal committed a jurisdictional error so that its decision was no decision at all. 28 His Honour held however that the tribunal's reasoning was well open to it and that he could see no arguable ground of jurisdictional error affecting the reasoning. For the reasons that I have given, I do not agree. 29 I am of opinion that the appellants have shown that there is an arguable case of jurisdictional error. That being so it seems to me that a summary dismissal of their case without a thorough investigation of it at a hearing would cause substantial injustice. I am satisfied that I should grant the appellants leave to appeal and treat the notice of appeal filed by them as being properly instituted notwithstanding the irregularities to which I have already referred. 30 Because the claim has not been explored at a fully contested hearing at first instance it may be that there are materials and arguments that could be deployed there which are not before me. The Minister has submitted that should I grant leave to appeal and allow the appeal, the appropriate order in the circumstances of this case is to remit the matter to the Federal Magistrates Court to be heard by it. I think that is appropriate. 31 I would have preferred to deal with the matter myself, having considered the materials, but I think that it is clear that all the material before the tribunal was not before his Honour, as is evidenced by the Minister seeking to adduce further evidence at the hearing of the appeal before me in the form of material that the tribunal had referred to in its decision. A transcript of the hearing before the tribunal may also assist in determining whether the arguable case I have found could, on proper examination, be sustained. 32 It is regrettable that I cannot deal with the whole matter now, having regard to the time involved for different courts to look at the matter and costs to the parties and community. For the reasons I have given I am of opinion I should allow the appeal. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate: Dated: 20 November 2007 The Appellants appeared in person.

Counsel for the First Respondent: BK Nolan Solicitor for the First Respondent: Blake Dawson Waldron

Date of Hearing: 26 October 2007, 2 November 2007 Date of Judgment: 2 November 2007