SZMZL v Minister for Immigration and Citizenship

Application of relevant principles to the present case 21 The first applicant is a non-citizen in Australia who is a citizen of India. The second appellant is a non-citizen in Australia who is the spouse of the first appellant. She does not contend that she is a person to whom Australia has protection obligations under the Convention. 22 The appellants arrived in Australia on 4 March 2008 having left India on the previous day. They each travelled on passports issued by the Indian government and entered Australia relying upon three month visitor visas. On 17 April 2008 the appellants applied for Protection (Class XA) visas. On 3 July 2008 a delegate of the Minister decided that the application of the appellants for protection visas should be refused as their claims did not meet the requisite criterion for a protection visa set out in s 36(2) of the Act. 23 On 30 July 2008 the appellants applied for review of the Minister's delegate's decision to the Tribunal. On 18 August 2008 the Tribunal wrote to the appellants' representative advising that it had considered the material before it but it was unable to make a favourable decision on that information alone. In the circumstances, the appellants were invited to appear before the Tribunal to give oral evidence and present arguments on 17 September 2008. That hearing was rescheduled for 3 October 2008 and on that day the first appellant alone appeared. The first appellant is fluent in English and can read and write English. He has been accompanied to Court today by an interpreter who is able to interpret from the English language into Malayalam and from Malayalam into English but it has been unnecessary for the interpreter to become involved in assisting the first appellant except in a minor respect. The hearing before the Tribunal occupied a little over one hour. 24 No record of what transpired in the Tribunal hearing was placed before the Federal Magistrates Court of Australia, to which further reference will be made shortly. The Tribunal's decision of 15 October 2008, affirming the decisions of the Minister's delegate not to grant the appellants Protection (Class XA) visas, was handed down on 4 November 2008. 25 On 28 November 2008 the appellants filed an application in the Federal Magistrates Court of Australia seeking constitutional writ relief in respect of the decision of the Tribunal. The original application contained two grounds as follows: '1. The RRT misunderstood my Convention claims advanced- NABE v MIMA (No2) [2004] FCAFC 263 2. The RRT did not comply with its obligation under section 424A of the Migration Act 1958.' 26 On 2 April 2009 a further document was filed in the Federal Magistrates Court of Australia entitled 'Additional Grounds of Application'. The additional grounds were expressed in the following terms: 'In addition to the Grounds set out in the Application filed 28 November 2008 the Applicants rely upon the following grounds: 1. The Tribunal failed to determine the application made to it. Particulars a) At par. 58 the Tribunal correctly determined the basis of the application before it as fear of persecution on the basis of religion, political opinion and membership of a particular social group. b) At par. 60 the Tribunal purported to determine the issue of political belief. c) The Tribunal however failed to determine the issues of religion and membership of a particular social group in relation to the harm feared by the Applicants. d) In addition to the extent that membership of a particular social group is related to religious belief the Tribunal in determining the Applicants could relocate to another part of India failed to consider the impact of that relocation on their membership of a particular social group (see below). 2. The Tribunal in determining the Applicants could relocate to another part of India failed to consider at all or fully the reasonableness and effect of that relocation. Particulars a) The Tribunal found that Kerala had the largest Christian population in India. b) The Tribunal failed to consider and assess the effect on the Applicants of relocation within India to parts that have a smaller or minimal Christian population, and in addition the impact on the Applicants of being separated from people having similar Christian beliefs and practices and/or different social groupings.' 27 It would appear that at a directions hearing before the Federal Magistrates Court of Australia on 9 February 2009 the court referred the applicants to the court's legal advice scheme for free legal advice. It would appear that thereafter Additional Grounds of Application to which reference has been made were drawn by one of the panel advisers, Mr John Atkin of counsel. The application for constitutional writ relief came before a Federal Magistrate on 3 April 2009, the relevant decision thereon being delivered on 29 April 2009. The orders of the learned Federal Magistrate were : '1. The proceeding before the Court, commenced by way of application filed 28 November 2008, is dismissed. 2. The Applicants pay the costs of the First Respondent fixed in the amount of $5,000.' 28 From that decision an appeal has been brought to this Court by Notice of Appeal filed 18 May 2009. The grounds of appeal before this Court were expressed succinctly as follows: '1. The RRT did not consider all the practicalities for my wife and me in relocating in India. 2. The RRT decision is affected by jurisdictional error. 3. The RRT failed to deal with the all elements (sic) of my Convention claims which I advanced to the RRT (my religion and my membership of a particular social group). I am unrepresented. I will file and serve an amended notice of appeal and written submissions when required by this Court.' 29 Somewhat unusually in matters such as this, the Court was assisted by the provision of an APPELLANTS' WRITTEN SUBMISSION filed 7 August 2009. Those submissions were signed by both the first appellant and the second appellant, although the first appellant alone has appeared on the hearing of the appeal. The Court has also been assisted by the filing on 12 August 2009 of a detailed written submission on behalf of the first respondent. It would appear that the Appellants' Written Submission was not served upon the legal representatives for the first respondent, although a copy of it was made available during the course of the present hearing.

30 The appellants' application for Protection (Class XA) visas revealed that they were members of an ethnic group described as 'Other Backward Community' and that their religion was 'Latin Catholic.' Each of the appellants comes from the State of Kerala, although it would appear that the home town of the appellants was at Kazhakoottam, which may not be typical of the whole of the State of Kerala.

31 The first appellant's claim to having a well-founded fear of persecution for a Convention reason referred to his membership of the Kerala Student Union, being a student wing of the Indian National Congress. He referred to the opposition to the student wing to which he belonged, being the Student Federation of India, which was a wing of the Communist Party of India (CPI(M)).

32 The first appellant referred to his student political activity in the period 1985 - 1987. He asserted that he had been assaulted by members of the Student Federation of India in his student days. 33 The first appellant also referred to the fact that he had spent a considerable period of time working in Abu Dhabi. It would appear that he worked there for some eight years, from 1997 to 2005, with irregular contact with his family back in India. He apparently married the second appellant in 2000 and they appear to have two children, born in 2003 and 2005. When the first appellant returned from the Gulf area in 2005, he established, so he says, a small bakery business in the names of himself and his wife, although he said that his father was the legal owner of the business even though it had been financed and managed by him. 34 At this stage, the CPI(M) was in power in Kerala. It would appear that union workers who were members of CPI(M) made claims upon the first appellant for preferential employment for union members who were members of the CPI(M). The first appellant claimed that he ran into difficulties with the CPI(M) and that 'thugs demanded my workers to stop working for me and I was badly beaten by them.' The first appellant asserts that he was warned that he should not report the matter to the police. 35 The first appellant also referred to a public well located in front of a church at which he worshipped in Kazhakoottam. It would appear that Hindus were engaged in constructing a memorial in that location and according to the first appellant were filling the well with concrete or mud, however one describes the relevant material. The first appellant asserted that he was: '… severally (sic) assaulted by the Hindu supporters in this conflict. As a backward Christian community I faced lose (sic) of income, inability to run the business and threats from CPI (M) union …".' He decided to leave India, 'as escalating violence by the CPI(M) against me (sic).' He further said, 'My opportunity to run a business and to survive was denied due to my political profile.' 36 He proceeded to indicate that the Kerala police and the CPI(M) were in power and were slow to protect him from his problems. He said that he was vulnerable to persecution in the state of Kerala as long as CPI(M) was in power. 37 The 'claims and evidence' section of the Tribunal member's Statementof Decision and Reasons recorded demands made upon the first appellant by the CPI(M) and local council members in about March 2007 who demanded that he provide them with funding for their party, which he refused. He claimed before the Tribunal member that the CPI(M) members and a local council member, Rajan, threatened his workers, and he was 'badly beaten'. He says that he was warned not to go to the police (see [34] above). 38 The Tribunal also recorded the first appellant's claim 'that there were clashes between Christian and Hindu extremists along with the SNDP members and supporters and he was severely assaulted by the Hindu supporters in this conflict' (see [35] above). The first appellant claimed that the Kerala police could not protect him from these problems. He asserted that as long as the CPI(M) was in power in the state of Kerala, he was vulnerable to persecution. The 'Country Information' to which the Tribunal member referred included a note that India was a secular state with no official religion. It also referred to the fact that Kerala was the State which had the highest concentration of Christians in all of India. It was said that, according to government figures, Christians comprised 19 per cent of the population of Kerala whilst the national average was 2.3 per cent. 39 At [30] of the Tribunal member's Reasons for Decision, she said: '30. Recent reports of attacks on Christians in Kerala include the murder of a Christian man by suspected extremists, and the vandalising of a new Gospel Centre. Both of these incidents took place in February 2007 …' 40 In relation to relocation in India, the Tribunal said at [38]: '38. Generally, citizens are free to relocate from one state of India to another. The available information suggests that, although Christians are generally able to live a normal life in India, this has been affected by an increase in Hindu fundamentalism in recent years. …' Later, at [39], the Tribunal member referred to further country information which included: '39. … the available information suggests that religious minority groups, (including Christians) are being increasingly targeted by Hindu extremist groups and that the central government sometimes does not act effectively to counter such attacks, thereby contributing to the view that these violent acts may be committed with impunity. …' 41 In the 'FINDINGS AND REASONS' section of her Statement of Decision and Reasons, the Tribunal member said: '58. The applicant's claims, as they emerged from the hearing, are that he fears persecution on the basis of his religion, political opinion and membership of a particular social group. He claims he has been subject to persecution in the past because of this and fears persecution should he return to India in the future.' 42 I would observe that in his original protection visa application the first appellant did not expound a detailed case of persecution founded upon his membership of a particular social group, being that of wealthy returnees from the Gulf region. He also did not detail the fact that his wife was said to have been a candidate for political office. 43 The learned Federal Magistrate who dealt with the application for constitutional writ relief said at [20]: '20. The Tribunal found the First Applicant was not a witness of truth.' It does not seem to me that the Statement of Decision and Reasons of the Tribunal member warranted this conclusion. There may have been aspects of the Statement of Decision and Reasons which were consistent with an embellishment by the first appellant of his case, but there were many aspects of the claims made by the first appellant which were plainly accepted by the Tribunal. 44 Another seemingly unusual feature of her Honour's Reasons for Judgment in this case was her extensive use of expressions such as 'A fair reading of the Tribunal's decision record suggests…'. Her Honour used this expression, or a similar one at [32], [33], [36], [53] (twice), [64] (twice), [67] and [72] (twice). It seems to me that her Honour used this expression as she did because there were deficiencies in the Statement of Decision and Reasons of the Tribunal member which warranted careful consideration and holes in the reasoning of the Tribunal member, as recorded. 45 I am conscious of the fact that a Court should not view the reasons of a Tribunal member with an eye for detail which is alert to minute error. However, I am concerned that, having identified the claims made by the first appellant and recorded by the Tribunal member at [58] of her Statement of Decision and Reasons (see [41] above), the Tribunal member appears to have addressed only one of those claims in any detail. As the Tribunal member said, the first appellant feared persecution firstly on the basis of his religion, secondly on the basis of his political opinion, and thirdly on the basis of his membership of a particular social group. 46 The headings which follow in the Tribunal member's Statement of Decision and Reasons under the heading FINDINGS AND REASONS were: 'Political opinion', 'Harm', 'State Protection', and 'Relocation'. Somewhat curiously, there were no headings 'Religion' and 'Membership of a Particular Social Group' after 'Political opinion'. 47 The learned Federal Magistrate employed her expression 'fair reading of the Tribunal's decision record' at [33] when her Honour said: '33. The Tribunal accepted that the First Applicant may have suffered some discrimination because of his wealth and the fact that he owned a business, however, was not satisfied that the First Applicant was targeted by reason of his political opinion. Neither did the Tribunal accept that the First Applicant was beaten because of his political opinion. A fair reading of the Tribunal's decision record suggests that this finding is a rejection of any Convention based persecution of the First Applicant by reason of his membership of a particular social group of wealthy business owners who are also members of the Indian National Congress Party.' 48 It is true that in her Statement of Decision and Reasons, the Tribunal member in her ultimate summary of her findings on the first appellant's claims, dealing with them compendiously, said, at [75]: '75. Having considered all the issues and the claims made by the applicant individually and cumulatively, and based on the evidence currently before it, the Tribunal is not satisfied that the applicant suffered past persecution or that he faces a real chance of being persecuted now or in the reasonably foreseeable future if he returns to India in relation to his race, his religion, his nationality, political opinion or membership of a particular social group, actual or imputed. The Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution.' 49 It is clear that the Tribunal was not satisfied that the first appellant was an 'active member of the' Indian Congress Party or that he involved himself in its activities such that opposition party members would target him specifically. It is not surprising, in the circumstances, that at [67], the Tribunal members said: '67. … the Tribunal does not accept that the applicant was targeted for his political opinion. The Tribunal does not accept that the applicant was beaten because of his political opinion. … The Tribunal finds that the applicant has embellished his claims for the purposes of supporting a protection application and does not accept that he suffered harm amounting to persecution.' 50 Under the heading 'Harm' the Tribunal member said at [65] - [66]: '65. The Tribunal accepts that whilst Christians form a significant religious minority in Kerala, sectarian and inter-religious violence nevertheless occurs and it is not implausible that the applicant may become a victim or (sic) random acts of violence in such circumstances. However this would make him a victim of civil disorder or generalised sectarian violence and not necessarily a refugee from persecution. 66. The Tribunal accepts that the applicant may have been singled out and pressured to employ certain people because he is considered a wealthy man and owns a business. He is also a returnee from the Gulf and also imputed as a wealthy man as a result. The Tribunal accepts that the applicant may have experienced bullying, threats, and extortion in trying to run his business. It accepts that there have been clashes between Hindus and Christians and the applicant may have at some stage witnessed such clashes or been a victim of such clashes.' 51 However, it is apparent from the above that the Tribunal member accepted that the first appellant was a Christian and that inter-religious violence occurred in Kerala. She also accepted that it was 'not implausible' that the first appellant may become a victim of random acts of violence in such circumstances. She further was of the opinion that his victimisation may be as a 'refugee from persecution' which was recognised by her use of the words 'not necessarily' at [65] of her Statement of Decision and Reasons. 52 It is also apparent that the Tribunal member acknowledged that the first appellant was a member of a particular social group, being returnees from the Gulf who were imputed to be wealthy as a result. The Tribunal member accepted that the first appellant may have experienced bullying, threats and extortion in trying to run his business, apparently in the context of him being a member of a particular social group. 53 Unfortunately, the Tribunal member did not record her finding as one of satisfaction or dissatisfaction in relation to the fear of persecution which the first appellant claimed to have experienced by reason of his membership of the particular social group. 54 The Tribunal member then proceeded to find that the first appellant 'may have … been a victim of … clashes [between Hindus and Christians].' 55 Unfortunately, the Tribunal member failed to specifically address the question of whether or not, owing to a well-founded fear of being persecuted for reasons of religion and/or membership of a particular social group, the first appellant was outside the country of his nationality and unable or, owing to such fear, unwilling to avail himself of the protection of India. 56 I am not satisfied that the words of paragraph [75] of the Tribunal member's reasons deal with these issues, given that the words of paragraph [75] are inconsistent, at least in part, with the words of paragraphs [65] and [66]. It is hard to understand how the Tribunal could on the one hand accept that there had been clashes between Hindus and Christians and that the first appellant may have been a victim of such clashes, and, at the same time, not be satisfied that the applicant 'suffered past persecution.' 57 In relation to State protection, the Tribunal member seems to have focused mainly upon the fact that the first appellant did not seek State protection. The answer proffered by the first appellant was that the police would not help him because they were close allies with the CPI(M) and that the police consorted with that political party. It must be recalled that in his original application for a protection visa, the first appellant asserted, as I understood it, that whilst the CPI(M) was in power, the Kerala police were slow to protect persons who experienced the problems and the escalating violence which he asserted. 58 The Tribunal member proceeded to deal with relocation at [73] - [74] of her Statement of Decision and Reasons. She concluded, effectively, that it was reasonable for the first appellant to relocate within India. 59 As previously indicated, what is 'reasonable' in the sense of 'practicable' must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality. 60 If the Tribunal member focused her attention primarily upon the first appellant's claim to refugee status by virtue of his claimed political opinion and failed to address satisfactorily the claims to refugee status based upon his religion and upon his membership of a particular social group, being wealthy returnees from the Gulf (in his case, after spending eight years working in the Gulf) undermines, in my view, the finding made by the Tribunal member on the reasonableness of relocation within India. 61 It may well be that for the reasons proffered by the first appellant, relocation within India was not as simple a matter as it may otherwise have been thought to be. One would have thought that it would be necessary, at the least, to consider the reasonableness of relocating to another state within India where there may also have been claims made on Gulf returnees which might constitute serious harm, in the form of significant economic hardship or physical threats if demands for the payment of money were not met. If extortionate demands were placed upon the first appellant, wherever he lived, because he belonged to the particular social group mentioned, it may be that relocation within India was not a reasonable alternative. 62 In my opinion, the appeal should be allowed, the orders of the Tribunal quashed and a writ of mandamus issued requiring the second respondent to determine the application made on 17 April 2008, according to law. I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.

Associate: Dated: 27 August 2009 The First Appellant appeared in person.

Counsel for the First Respondent: M P Cleary

Solicitor for the First Respondent: Clayton Utz

The Second Respondent filed a submitting appearance.