MZWFZ v Minister for Immigration

[2005] FMCA 598

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZWFZ v MINISTER FOR IMMIGRATION [2005] FMCA 598

MIGRATION – Judicial review – protection visa – Refugee Review Tribunal – obligation of Tribunal to consider claims arising on material before it – no error of law – application dismissed.

NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) [2004] FCAFC 263
Morato v Minister for Immigration, Local Government & Ethnic Affairs (No. 2) (1992) 39 FCR 401
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Applicant: MZWFZ

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: MLG 458 of 2004

Judgment of: Hartnett FM

Hearing date: 29 April 2005

Delivered at: Melbourne

Delivered on: 29 April 2005

REPRESENTATION

The Applicant: appeared on own behalf

Counsel for the Respondent: Mr R.C. Knowles

Solicitors for the Respondent: Clayton Utz

ORDER

1. The application is dismissed.

2. The applicant pay the costs of the respondent fixed in the sum of $6,300.

3. Pursuant to rule 21.15 of the Federal Magistrates Court Rules2001 the Court certifies that it was reasonable for the parties to employ an advocate.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 458 of 2004

MZWFZ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The applicant, who was born on 3 January 1976 in Jagtial in India, entered Australia on a temporary business visa on 9 March 2003.  He claimed to be of Hindu religion.  He travelled to Australia on a valid Indian passport issued in his own name.  On 20 March 2003 the applicant lodged with the Department of Immigration and Multicultural and Indigenous Affairs an application for a protection visa. 

2. The applicant claimed by reason of (a) his imputed political opinion as an opponent of the Naxalite movement, and (b) his Hindu religion, he faced a real chance of persecution at the hands of the Naxalites and Muslims respectively if he were to return to India in the foreseeable future.

3. A delegate of the respondent refused his application on 22 May 2003 and thereafter he lodged an application for review with the Refugee Review Tribunal on 10 June 2003.  On the days of 19 February 2004 and 3 March 2004 the Tribunal conducted a hearing at which the applicant gave oral evidence.  He was assisted by an interpreter.  The Tribunal had before it the Department's file which included the protection visa application and the delegate's decision record.  The Tribunal also had regard to the material referred to in the delegate's decision and other material available from a range of sources, including country information, and in particular country information relating to Hinduism in India and the Naxalites.

4. The Tribunal's decision dated 11 March 2004 was handed down on 2 April 2004.  The Tribunal affirmed the delegate's decision not to grant the applicant a protection visa.  On 3 May 2004 the applicant filed in this Court an application for judicial review of the Tribunal's decision.  On 1 November 2004 the applicant filed and served an amended application and contentions of fact and law of that date.

The RRT hearing

1. The contentions of the respondent accurately set out the claims of the applicant before the Tribunal which were as follows:

   a)the applicant approached the Naxalites to assist him with a business problem caused by directors of his company defrauding money from the company;

   b)the police discovered that the applicant had approached the Naxalites and forced him to act as a police informer;

   c)when the Naxalites found out that the applicant was acting as a police informer, they attended the applicant's house, and not finding the applicant, threatened his mother and damaged the house;

   d)the applicant did not report to the police the Naxalites visit to his house because the police would not take any action;

   e)the Naxalites returned on two further occasions to the applicant's house and in the applicant's absence made further threats;

   f)in March 2003 the applicant left India for Australia;

   g)as a Hindu, the applicant felt threatened by Muslims in India, although he could not give particular details of what he feared;

   h)skirmishes sometimes occurred between Hindus and Muslims in the applicant's neighbourhood.

2. Before the Tribunal the applicant claimed a fear of returning to India because he would be killed by the Naxalites.  Specifically he claimed not to fear the police.  In the proceedings before me, the applicant claimed to fear the police.  This was not a claim that he put before the Tribunal and it was not a claim which arose from the materials before the Tribunal.  The Tribunal is not obliged to deal with claims which are not articulated and which do not clearly arise from the materials before it (NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) [2004] FCAFC 263).

3. At the hearing the applicant took an oath on the Bible and the Tribunal asked him about his religion as he had stated that he was a Hindu and this was of relevance to his claims.  The applicant replied to the effect that he believed in a supreme being, no matter what the label.  In relation to the applicant's claims concerning persecution on the basis of his Hindu religion, the Tribunal stated that:

   He seems to have been living at the same address since 1976, his fear of Muslims was expressed in the vaguest and most general of terms such that the Tribunal doubts even the subjective nature of such fear; finally he stated that he did not particularly fear anything in this regard.  While the Tribunal considers that the tensions described are a fact of life in the society at large, it does not accept that the chance that the applicant would be harmed for reason of his religion is a real one.

4. In relation to the applicant's claims concerning persecution at the hands of the Naxalites, the Tribunal considered the nature of the applicant's evidence and consequently was "not satisfied that the applicant's account or even the basic premises of his claim is a true reflection of reality", and later:

   Even if the Tribunal were to accept the applicant's claims in their totality, it appears that the applicant's future harm would not be for any of the reasons stipulated by the Convention.  It is not for his race, religion or nationality that the Naxalites wish to harm him, nor is it because he belongs to a particular social group; the Tribunal finds that the evidence does not lead to a consideration of the applicant as a member of any particular social group.  The Full Federal Court in Morato v Minister for Immigration, Local Government & Ethnic Affairs (No. 2) (1992) 39 FCR 401 held that "police informers" did not constitute a particular social group (per Black CJ, French J agreeing, at 406; per Lockhart J at 417). It is clear from the applicant's testimony that he approached the Naxalites as persons who could carry out illegal, coercive activities toward other persons, because of their criminal reputation and not because of their political leanings, his complicity in illegal designs was admitted by the applicant. Nor can the applicant's political opinion, either real or imputed be included as the reason that he might be harmed. Again it is clear that the Naxalites feel betrayed by someone who appeared first to seek their help or services and then double-crossed them.

5. In its decision, the Tribunal found that the applicant did not face a real chance of persecution for any Convention reason if he were to return to India.  During the hearing the Tribunal had put to the applicant for comment various inconsistencies between the information contained in his business visa application and that contained in his protection visa application.  The applicant responded that he had left all arrangements for the business visa application in the hands of an agent, and despite having signed the business visa application form, did not know what was said in that application.  The Tribunal also for the sake of completeness discussed relocation with the applicant during the hearing.  The applicant agreed that "moving was an option".

6. In essence the applicant wishes to challenge the merits of the Tribunal's decision which is not open to this court (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 and 291). The Tribunal made findings of fact uniquely within its jurisdiction and such findings of fact were supported by probative material before it. The Tribunal's conclusion that the applicant's claims disclose no Convention nexus was open to it on the evidence before it and discloses no error of law, let alone jurisdictional error. I accept the respondent’s submission that the applicant has demonstrated no proper basis for criticism of the process adopted by the Tribunal or its decision. Accordingly the application should be dismissed with costs.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Hartnett FM

Associate:  Sophie Killen

Date:  29 April 2005