MZWEN v Minister for Immigration - [2005] FMCA 1813

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZWEN v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1813

MIGRATION – Protection visa – whether jurisdictional error – wrong inference of fact.

MIMA v Abdi (1999) 87 FCR 280
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCAFC 10

Applicant:

MZWEN

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:	REFUGEE REVIEW TRIBUNAL
File Number:	MLG 342 of 2004

Judgment of:

McInnis FM

Hearing date:

25 November 2005

Delivered at:

Melbourne

Delivered on:

7 December 2005

REPRESENTATION

Applicant:

In person

Counsel for the Respondent:

Mr C. Horan

Solicitors for the Respondent:

Phillips Fox

ORDERS

The application filed 24 March 2004 be dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $6,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 342 of 2004

MZWEN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

In this application the applicant seeks judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 6 February 2005. The Tribunal decision had affirmed a decision of the delegate of the First Respondent refusing to grant a protection visa.
The Applicant is a citizen of India, of Hindu religion and Brahmin caste. He arrived in Australia on 3 February 2003. On 11 March 2003 he lodged an application for a protection visa. In that application the Applicant claimed he had been an employee of the Union Bank of India and a founding member of the All India Bank Employees Association (AIBEA) which is affiliated to the Communist Party of India. He claimed he had been harassed by the union representing the "backward class" in his bank who were backed by the ruling party (the BJP). He claimed that he was threatened and attacked due to union and party rivalry and was ultimately forced to leave the bank in 2000.
It is noted that the Applicant told the Tribunal that during his 27 years of service with the bank he had been nominated for various positions in the union and worked for the benefit of employees. Reference was made to a claim by the Applicant that all organisations in India have a quota of reserve jobs and promotions for the backward class on religion/caste. According to the Tribunal decision, "He did not belong to the backward class and obtained his job and his promotions on merit."
It is significant that under the heading ‘Claims and Evidence’ the Tribunal further refers to the Applicant's family background and fears that either he or his family would be killed by opposition union leaders who are supported by influential political leaders. Specifically, however, apart from relying upon the material in the application it would appear that another document was also relied upon by the Applicant in support of his application. Reference to the other document appears in the Tribunal decision as follows:
“At the commencement of the hearing, the applicant submitted a copy of a letter he had written to the inspector of police at his local police station stating that he had received a threatening phone call from a person stating he was calling on behalf of Mr (S) and demanding Rs4 petis or the applicant and his family would be faced with dire consequences. The letter states that the phone call had come after the applicant had suspended a bank officer, Mr G, for allowing an unauthorised overdraft on the account of Mr (P). The applicant asked the inspector of police to look into the matter and provide him police protection. The letter was undated, but a handwritten annotation indicates that it was received by the police on 14 May 1998.”
(Court book pp. 68-69)
Further in the Tribunal's decision, the following reference is made to the issues raised in the letter. The Tribunal states:
“The applicant informed the Tribunal that his problems had begun in May 1998. He referred the Tribunal to the document he had submitted at the commencement of the hearing. The applicant explained that Mr (S) was an underworld figure. He was demanding a sum of about Rs400,000 from the applicant, which was a lot of money. The applicant said that Mr M was related through marriage to Mr G, the bank officer he had suspended for allowing an unauthorised overdraft. The applicant said that Mr G was also close to the Minister and to the police.”
It is relevant to set out an extract from the letter in the following terms:
“Today morning I received a phone call at 9.45 a.m. from a person who said he was calling on behalf of one Mr SM and demanded Rs.4 petits failing which he threatened with dire consequences to me and my family and he further informed that he would call back within 3-4 days.
…
This phone call has come after one of our officers Mr G was suspended last week for allowing overdraft in the account of Mr PD without taking permission from manager.”
(Court Book p. 63)
Before this Court an issue was raised by the Applicant that the reference by the Tribunal to that letter and the incident arising from the letter was incorrect to the extent that the applicant, albeit as manager, did not actually suspend the officer referred to in the correspondence.
For present purposes I am prepared to accept that the inference drawn by the Tribunal may not have been open to it in the circumstances, though on the other hand it seems clear that the letter itself is vague enough to at least permit that inference to be drawn. The inference, however, is not perhaps as important as to who suspended the officer, but rather that the letter itself was what was ultimately described by the Tribunal as the starting point of the problems of the Applicant.
The Tribunal had further stated the following in its reasons:-
“The Tribunal commented that the applicant's problems did not appear to be for a reason which came under the Refugees Convention. Mr M seemed to be targeting the applicant for personal reasons arising from the applicant's treatment of Mr M's relative, Mr G. The applicant said he was being targeted because of his race. He was a Brahmin, and he had experienced problems with scheduled caste people. He said that Mr G was from a scheduled caste. The scheduled caste people wanted an excuse to target him. The applicant said that there were very few Brahmin bank managers, and that is why he was targeted. Other people at the bank had problems with people from the scheduled caste, but his problems were worse because he was a Brahmin. The Tribunal asked if his own union had assisted him. The applicant said that he had told the management of the bank, that they had done nothing.”
(Court Book p. 70)
Further in the discussion of the claims The tribunal states the following:-
“The Tribunal commented that it was having difficulty understanding how an influential Brahmin, who was at the top of the Indian caste system, could be having such problems because of the actions of people who were at the bottom of the system. …”
(Court book p. 71)
Under the heading ‘Findings and Reasons’ the Tribunal, in dealing with the Applicant's claims accepted that he was a Hindu of the Brahmin caste and that he was employed by the Union Bank for 27 years rising to the position of Branch Manager. It also accepted that for many years the applicant was an active member of the AIBEA in the union bank.
Significantly the Tribunal then states the following:
“The Tribunal accepts the applicant was the victim of extortion demands and harassment and that he was physically assaulted on several occasions. The Tribunal accepts that the applicant was targeted for this harm by a criminal and his gang members as an act of revenge because in the course of his duties at the bank, the applicant had punished a relative of the criminal for approving and unauthorised overdraft. The Tribunal accepts that the harm experienced by the applicant was of sufficient severity as to constitute persecution.
The applicant has claimed that the motivation of the persecutors was racial - he is a Brahmin and the bank officer he punished and his associates were members of a scheduled caste. He claims that his action in punishing his subordinate provided an excuse for members of the scheduled caste, supported by the union representatives, to persecute him because of his caste. Although the persecution was carried out by private individuals, the applicant claims he was unable to obtain protection from the authorities because of the political influence of members of the scheduled caste and their union but also because of their influence with the police.
The Tribunal notes that the Australian Courts have found that the mere fact the conduct can be characterised as revenge does not mean that it cannot come with the Convention definition of persecution. …”
(Court Book p.72)
The Tribunal, after referring to a Full Court decision of MIMA v Abdi (1999) 87 FCR 280 goes on to state the following:-
“However, in the case of the applicant, the Tribunal is not satisfied that he was targeted because of his race or his political opinion or any other Convention reason. The applicant had been working for the bank for 25 years prior to the problems which began in 1998. He had been a bank manager for the past six years. If his caste or political opinion, as evidenced by his support for the AIBEA, were the reasons why he was targeted for harm, it is reasonable to expect that he would have had significant problems much sooner. The Tribunal notes the applicant's explanation that the scheduled castes have only achieved power and influence in recent years. Nevertheless, in view of the influence he claimed the scheduled castes had established over the government and the police, the Tribunal considers that they would have been in a position to harm him earlier if they had wished to do so.
The Tribunal does not accept that the punishment the applicant gave to his subordinate was significant only in that it provided an ‘excuse’ for members of the scheduled castes to persecute him. If the scheduled castes were as powerful as the applicant claims they were, and they disliked him as much as he says because he was a Brahmin, it appears to the Tribunal that they had no need to wait for an 'excuse' to persecute him. Gangsters don't need 'excuses' to engage in harmful behaviour.
The applicant has claimed that the persecution continued for three years after he left the bank, until he came to Australia. Since his wife returned to India, she has continued to be harassed by Mr M's associates. The fact of the persecution continuing well after the applicant left his job at the bank and his union activities associated with the bank indicates that the motivation for the harm was for personal reasons rather than his position as a Brahmin bank manager or a person who was active in a union which was politically opposed to the union to which the scheduled castes belonged.”
(Court book p.73)
It is argued by the Applicant that an error occurred in relation to the reference by the Tribunal to the suspension of Mr G as being a suspension undertaken by the Applicant.
It is clear to this Court that essentially the arguments raised by the Applicant seek to contest the factual finding of the Tribunal which although in part are based upon an inference, also seems to be in part based upon material provided by the Applicant himself as to the reason why he was targeted for harm. He seems to suggest that the suspension of a subordinate provided an "excuse" for members of the scheduled caste to persecute him. Consequently, it is not surprising that the Tribunal may have drawn the inference that it was the Applicant's decision to suspend the subordinate which led to the onset of the problems and that the person who actually undertook the suspension was not necessarily the Applicant. In my view the significant factual finding concerns the starting point of the difficulties which were related to the suspension of a subordinate who was then working in the bank where the Applicant was Manager rather than the issue of who specifically ordered the suspension.
The Applicant, in written submissions before this Court and indeed in his application, sets out a number of factors under the heading ‘Grounds of Appeal’. Those factors, however, in my view, essentially seek to re-argue the facts as found by the Tribunal. In my view, this is a case where the Tribunal had reached a conclusion that the Applicant was not likely to be persecuted for a Convention reason and has done so by making findings of facts reasonably open to it.
I cannot see any jurisdictional error or any error of a kind which would permit judicial review of the Tribunal's decision. I adopt and apply the principles set out in the Full Court decision of the Federal Court in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCAFC 10 at [10] -
“10 In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s 39B of the Judiciary Act.. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal.”
Applying the principles in that decision and having regard to my finding that in my view the extract from the Tribunal's decision clearly indicates findings of fact reasonably open to it based upon the material presented to the Tribunal by the Applicant, I can detect no error of law. Even if there was some minor discrepancy in the finding of fact concerning the person who actually suspended the subordinate, that would not of itself provide a sufficient basis upon which this Court could conclude that there has been jurisdictional error.
On the material before me it is clear that finding, albeit in part by inference, was reasonably open, even though it is arguable that it drew the wrong inference having regard to what the Applicant now asserts to be the facts concerning the suspension of the subordinate.
Otherwise it is my view the Tribunal has properly taken into account other factors in reaching its ultimate significant conclusion that it was not satisfied the Applicant was targeted because of his "race or his political opinion or any other Convention reason". It has properly and thoroughly analysed the claim put to it by the Applicant free of any error which would justify judicial review.
The First Respondent's contentions in this matter are correct to the extent that it is argued that this decision is not affected by jurisdictional error and accordingly it is appropriate the application should be dismissed with costs.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 7 December 2005