MZWAS v Minister for Immigration - [2004] FMCA 1087

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZWAS v MINISTER FOR IMMIGRATION

[2004] FMCA 1087

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa.

Migration Act 1958 (Cth)

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Applicant:

MZWAS

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MLG 1348 of 2003

Delivered on:

22 September 2004

Delivered at:

Melbourne

Hearing Date:

22 September 2004

Judgment of:

Riethmuller FM

REPRESENTATION

Counsel for the Applicant:

Applicant appeared on his own behalf

Counsel for the Respondent:

Ms J.K. MacDonnell

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The applicant’s application filed 1 December 2003 be dismissed.
The applicant do pay the respondent’s costs fixed in the sum of $6,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 1348 of 2003

MZWAS

Applicant

and

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an ex tempore judgment.
In this case the applicant and his wife and two children are citizens of India. They arrived in Australia on 7 November 2002, and on 4 December 2002 lodged applications for protection visas of class XA with the Department of Immigration and Multicultural and Indigenous Affairs.
On 30 January 2003 a delegate of the Minister declined to grant a protection visa, and on 24 February 2003 the applicant and his family applied for a review of that decision. The matter was heard by the Refugee Review Tribunal (‘the RRT’) which made a decision on 29 October 2003.
The applicant comes to this court to seek a judicial review of the decision of the RRT.
The substance of the applicant's complaint is outlined in a written submission that he prepared and lodged with the court on 2 July 2004. I do not need to set out in full the details of that submission in this judgment. Suffice it to say that largely the applicant’s argument was to the effect that the finding of fact by the RRT was wrong and that the applicant ought to be considered to have come within the relevant definition of section 91r.
The substance of the claims by the applicant are that a gangland-style murder occurred out the front of his shop in India which was witnessed by one of his employees. As a result, both the police and gangsters became interested in him and his staff members as they inevitably became important witnesses in the criminal process. He alleged that he was under pressure from both the gangsters and the police, two diametrically opposed groups, which resulted in a number of adverse consequences to his business and to a fear by him that if he gives evidence, he will be murdered by associates of the gangsters, and if he declines to do so, the police will take adverse steps against him which he seems to think may even include murder at the hands of the police. For example, at page 47 of the court book in one of his written submissions, he says, ‘I have to suffer or maybe die at the hands of the people who are searching for me back in India.’
A review of the relatively short decision by the RRT does give one some disquiet as to the fact finding and reasoning process, in particular when one reads the very lengthy paragraph on the bottom of page 5 through most of the way down page 6.
The RRT member accepted the general thrust of the applicant’s evidence saying:
The tribunal accepts that the manner of doing business involves payola for certain people, at least in this area of Mumbai; it accepts that the applicant witnessed a murder and it accepts that some adverse consequences have resulted from this for the applicant as claimed which may have led to his closing it down.
The RRT concluded that:
The tribunal is not satisfied that the harm suffered by the applicant which consisted of pressure being put on him to make certain statements and frequent visits to the police station or the court about the murders can be said to be of such gravity as to constitute persecution. The tribunal is also not satisfied that the claims of harassment by the police and the gangsters in his shop are credible, especially since the applicant did not pursue them at the hearing.
It causes one some disquiet that the RRT would not be satisfied of claims of some form of harassment by the police and/or the gangsters, given that they have previously accepted that there have been adverse consequences as a result of the witnessing of the murder and have accepted (in the form of words ‘may have’) that the shop has been closed down as a consequence. However, I am mindful of the comments of the High Court in the matter of Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 and it seems clear that the substance of the fact finding by the RRT is that they were not satisfied that there was significant harassment by the police and gangsters such as to amount to sufficient adverse consequences to fall within the meaning of section 91r.
The RRT do not appear to have specifically addressed whether or not the adverse consequences were such significant economic consequences as to fall within section 91r. However, that was not the substance of the case that was put to the RRT by the applicant at the time. Whilst on review of the RRT's reasons and the submissions of the applicant, the benefit of hindsight indicates that the case may have had better prospects if it was carefully prepared along those lines rather than the lines on which it was put to the RRT, these are not matters that can be used as a basis for showing jurisdictional error on the part of the RRT. Indeed, one must also be very aware of the fact that often strategic decisions are made in running cases before tribunals or courts as to which points are run and the amount of effort that is put into particular points: it does not show error of law by the RRT or give rise to a proper basis for review that an applicant now wishes to present a case on a different basis.
For those reasons I have ultimately concluded that in reality this is a case that really just concerns a complaint about the fact finding of the RRT, rather than reviewable error in the sense required for judicial review.
I should also record that during the course of argument I explored the other potential difficulty that the applicant's case would face in any event, which is that he does not appear to claim to be discriminated against because he is Muslim, but rather because he was the witness of a gangland-style killing. On such facts it is difficult to see that he falls within the requirements of the Act in any event, as it is difficult to categorise the witnesses of a gangland-style murder as a particular social group nor the reason for any adverse treatment as discriminate for a convention reason. These matters were not specifically discussed by the RRT but would ultimately result in the applicant failing before the RRT in any event. It is therefore not appropriate to exercise the discretion to quash the decision.
Finally, I also note that the applicant would also appear to be bound to fail in his application on the basis that the facts provide no basis for concluding that relocation within India was not reasonable.
In the circumstances, I therefore dismiss the application for review.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Associate:

Date: