MZSAL v Minister for Immigration - [2004] FMCA 529

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZSAL v MINISTER FOR IMMIGRATION

[2004] FMCA 529

MIGRATION – Application for protection visa – applicant a citizen of India – applicant claimed persecution as a Muslim living in a Hindu area – Tribunal found applicant’s evidence inconsistent and unbelievable – questions of fact and credibility for Tribunal to decide – no jurisdictional error shown.

Judiciary Act 1908, s.39B

Plaintiff S157/2002 v Commonwealth (2000) 395 ALR 25
Muin v Refugee Review Tribunal (2002) 190 ALR 601

Applicants:

MZSAL

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MZ 906 of 2003

Delivered on:

28 July 2004

Delivered at:

Melbourne

Hearing Date:

28 July 2004

Judgment of:

Phipps FM

REPRESENTATION

The applicants appeared in person

Counsel for the Respondent:

Mr C.J. Horan

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

That the application is dismissed.
That the applicants pay the respondent's costs fixed at $6000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 906 of 2003

MZSAL

Applicants

and

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application for relief against a decision of the Refugee Review Tribunal. The application is made pursuant to section 39B of the Judiciary Act 1908. So far as the tribunal decision is concerned, it was dealing with two applicants for protection visas. The male applicant claimed refugee status in accordance with the Refugee Convention. The female applicant is his wife whose claim therefore depends upon the success of the male applicant's claim. I refer to him as the applicant. It seems from the papers that he, in any event, is the only person who has made an application to this court.
The applicant is a citizen of India and a Muslim. He arrived in Australia on 7 June 2001. On 20 July 2001, the applicant lodged an application for a protection visa. He claimed to fear persecution from Hindu extremists and by the Indian authorities for reason of his religion. On 24 October 2001, a delegate of the minister refused to grant a protection visa to the applicant. On 30 June 2003, the Refugee Review Tribunal affirmed the delegate's decision.
The basis of the application to the tribunal was that the applicant is a Shia Ismaili Muslim from a village in a remote part of India. He said that there were 100 Ismaili in that village or area out of a total population of 125,000. His father was an active religious leader and his family owned a profitable shop in a Hindu area. He claimed that a prominent politician whose older brother was a Hindu priest opened a nearby shop in opposition. Supporters began to demand money from the applicant to continue operating the family shop in the area. On one occasion they seriously injured him and he was hospitalised. There was a complaint to the police and they questioned the applicant. The applicant identified his assailants, but the police warned him because they worked for a particular person. The applicant claimed that the police told the applicant's father to just pay the money demanded and he would be safe.
He claimed that his father agreed to that, however, on the next day the supporters ordered the applicant to clear the family shop within three days. The applicant's father complained to the most senior police officer, but he refused to help. He said that the applicant's family then hired a gang to protect them, but on one occasion the supporters on the other side shot and killed a man and seriously injured another man in their shop. The police then closed the shop to investigate the incident. He said that the police did investigate the incident and arrested people, but they were released on bail and he claims that the police then blamed him and accused him of being linked with a notorious criminal.
He said they arrested and detained him and forced him to sign a false statement to the effect of his link with notorious criminals. He says that he appeared in court but his father bribed the magistrate and he was released on bail. He claimed that he had to report twice each week to police. He claims they tortured him and his father then arranged for him to leave. He was threatened with an arrest warrant, so he returned. Eventually he left and then arrived in Australia.
The tribunal refers to these matters in a summary of a written statement to the tribunal by the applicant dated 20 July 2001. The tribunal then referred to evidence that the applicant gave at the hearing. The applicant said he was able to identify the people who attacked his shop because he lived in a small village. He said that the same people would create mischief in other ways. They would tease women and demand money. He said that if people did not give them money they would beat them. The tribunal asked who these people targeted and the applicant responded that they were mostly interested in money. The tribunal records that the applicant added that they targeted Muslims more than Hindus because Muslims had more money and he said that these people used the money to drink and gamble. The tribunal then records evidence that the applicant gave about his complaints to the police and the response of the police.
In its findings and reasons, the tribunal found that the applicant was not a credible witness. It said that in significant respects his evidence was inconsistent and inherently unconvincing. The tribunal says this:
The applicant's written account of the mistreatment he experienced in Vesova was inherently inconsistent with his evidence at the hearing in numerous respects. For instance, in that statement the applicant represents that he was being persecuted by Hindus for the essential and significant reason that he is a Muslim. He referred to the establishment of another shop in the area of his family shop as the time when he began to experience difficulties with the Shiv Sena and that he had such difficulties because his business competitor was a leading Shiv Sena politician. However, at the hearing the applicant barely mentioned Shiv Sena. Further, he conceded that the people who were causing problems for his business targeted him and other people mostly because they wanted money. On the basis of the evidence he gave at the tribunal, the tribunal could not be satisfied that the essential and significant reason why he was targeted by them was his religion.
The tribunal then went on to say that the applicant's written evidence that the police falsely accused him of being linked with a notorious criminal was inherently unconvincing. As was his written evidence that the magistrate told his father that he had no choice but to imprison the applicant if the police had false witnesses testifying against him. The tribunal found that the applicant gave inconsistent evidence in respect of the willingness of the police to assist his family.
The tribunal said that for those reasons it did not accept that the applicant had been mistreated by Hindus or the Indian authorities for reas his adherence to the Muslim faith. The tribunal said that it did not accept that the applicant genuinely feared being persecuted by Hindus or the Indian authorities upon his return to India. Therefore, the tribunal concluded that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.
To obtain relief under section 39B of the Judiciary Act 1908 jurisdictional error must be shown. The respondent's contentions refer to the recent cases which have dealt with that issue: Plaintiff S157/2002 v Commonwealth (2000) 395 ALR 25; Muin v Refugee Review Tribunal (2002) 190 ALR 601; and several other cases. Questions of fact are a matter for the tribunal. There can be jurisdictional errors which occur in the exercise of finding matters of fact and determining matters of credibility. The applicant has appeared for himself and has put forward no argument which suggests any jurisdictional error. The argument put forward merely repeats the factual matters that he alleges; that is, that he was persecuted because he was a Muslim.
The tribunal was entitled to consider that there were inconsistencies in the applicant's evidence as it has described. In particular, the tribunal was entitled to find that the applicant was not being targeted because he was a Muslim. That leaves inevitably to a finding that the applicant does not meet the definition of "refugee" contained within the Refugee Convention. In those circumstances there is no jurisdictional error shown. The application is dismissed.
An application has been made for costs. The respondent is a successful party and there is no reason why the normal rule should not apply.

I will allow $6000.00 as costs.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate: Sherryn Kwong

Date: 23 August 2004