MZWPA v Minister for Immigration - [2005] FMCA 1213

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZWPA v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1213

MIGRATION – Refugee claim – no error shown.

Judiciary Act 1903 (Cth) s.39B

Applicant:

MZWPA

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 962 of 2004

Judgment of:

Phipps FM

Hearing date:

25 July 2005

Delivered at:

Melbourne

Delivered on:

25 July 2005

REPRESENTATION

Applicant appeared in person

Counsel for the First Respondent:

Mr Lewis

Solicitors for the First Respondent:

Clayton Utz

ORDERS

The Refugee Review Tribunal be added as a respondent to the proceeding.
The application filed 26 July is dismissed.
The applicant pay the first respondent's costs fixed at $6,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 912 of 2004

MZWPA

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application pursuant to s.39B of the Judiciary Act1903 (Cth) for review of a decision by the Refugee Review Tribunal.
The applicant is a citizen of India. He arrived in Australia on 30 March 2003 on a visitor's visa. He lodged an application for a protection visa on 28 April 2003. A delegate of the respondent refused the application on 29 May 2003. On 18 June 2003, the applicant applied to the Refugee Review Tribunal for review of the decision. The tribunal conducted a hearing on 4 June 2004. On 30 June 2004, the tribunal gave its decision affirming the decision of the delegate. On 23 July 2004, the applicant filed an application in the Federal Magistrates Court. He has filed an amended application and contentions dated 5 April 2005.
The applicant's claims, many of which were accepted by the tribunal, are these: He is a Sunni Muslim and has lived in Mumbai with his wife and parents for the last few years. Between 1993 and 1995 he worked in Saudi Arabia. When he returned to Mumbai, he started a clothing business in a shop owned by his father. Nearby was an organisation called the Housing Society of Hindu. The applicant was approached by persons associated with the organisation wanting to purchase the shop, but the applicant said he was not interested in selling. The applicant said that after that, gangsters from the Hindu group came to his factory and made demands for protection money. He claimed that their leader, who he said was a member of the Shiv Sena group, started to beat him. One of his co-workers came to his assistance and was stabbed in the stomach and killed.
The applicant said that the gangsters blamed the murder on the applicant. The applicant said that these Hindu gangsters started harassing him by stealing his car and throwing stones at him. He called the police and had to appoint security guards. He received threatening calls that he would be shot and his factory burned unless he met the demands. He ran away from the factory when the police came after the stabbing already described. He went to another state for six or seven days. He claimed that the gangsters one day set the factory alight. They called the police and claimed that he was doing illegal business and helping terrorists. He claimed there was a false murder charge against him on account of the dead body, as well as charges related to weapons.
He went underground and the gangsters kept coming to his house and threatening his family. Eventually he came back and the Hindu gangsters took him to a big house where he saw 100 to 150 people in army-like dress with weapons. He then said that he signed papers transferring the factory after being threatened and tortured. He said he was told to leave the country and if he said anything his family would be killed. He was released and when he returned home he found his father was hospitalised due to the shock of what had happened. He sought assistance of friends who had links with police in Mumbai. That police officer refused to help. He advised him to leave the country immediately. He claimed that if he returned to India his life would be in danger as the Indian police were searching for him for what he described as an illegal case. He said he would be imprisoned if he returned to the country.
The tribunal referred to country information concerning India. Followers of Islam are a minority making up about 12 per cent of India's population. The tribunal referred to material which related to freedom of religion in India, but that there was material which showed some ineffective investigation and prosecution of attacks on religious minorities. The most recent report from the United States Department of State dated December 2003 described relations between various religious groups as generally amicable and the United States Department of State's Country Report on Human Rights Practices 2003 India described the Constitution of India as providing for an independent judiciary and that the government generally respected this provision in practice. However, the report said the judiciary were backlogged and understaffed in most parts of the country. Although the judicial system was extremely overburdened, the report said that in general, the judiciary enforced the right to a fair trial. However, there was a large backlog of cases and, as a result, some courts barely functioned.
Having reviewed the applicant's claims and the country information, the tribunal gave its findings and reasons. It accepted that the applicant is a Muslim from Mumbai and it accepted his account of his business involvement and his family circumstances. The tribunal accepted that the applicant was subjected to the extortion demands he described, that there was harassment and intimidation, sometimes with violence or a threat of violence, following his refusal to sell the property and that he signed papers under duress which led the property he owned to be transferred to a gangster.
The tribunal then considered the tribunal's claims that no-one was charged with the murder of the employee that was stabbed. The tribunal found the applicant's explanation about why no-one was charged unconvincing. The applicant said that the police attended and that he, the applicant, was accused, yet there was no apparent investigation by the police to investigate who was responsible. The applicant had said that he considered that the widow of the victim understood that he was not responsible and therefore the charge against him was not pursued. However, the tribunal said it did not accept that the understanding of the widow of the victim would lead to the matter to not be pursued.
The tribunal was puzzled by the applicant's claim that he had been charged with murder and weapons offences because a body and some weapons were planted in his factory when he was in another state at the time. The tribunal said it was unable to see why the applicant's father present at the time would not also have been charged. The tribunal considered it improbable that a senior officer would not take action to arrest a person charged with murder and weapons offences. The applicant had given evidence that the senior police officer had referred to bribing a judge to avoid a lengthy prison sentence. The tribunal did not consider that was supported by the independent information about the conduct of the judiciary in India.
The tribunal did not consider that the applicant had given an accurate account about the charges against him and the behaviour of the police. The tribunal did not accept that the applicant was implicated in the murder of an employee or that he was later charged with murder and weapons offences. The tribunal noted that the applicant did not appear to have sought the assistance of the police other than an informal meeting with a senior police officer, nor did he appear to have sought the assistance of a lawyer in relation to the false transfer of ownership or the charges he claimed were levelled against him.
The tribunal went on to say that it accepted his core claim in relation to extortion, harassment and intimidation, sometimes with violence, and the eventual loss of his property. The conclusion the tribunal came to from the evidence was that the essential and significant motivation for what the applicant had claimed occurred was that local gangsters wanted his assets. The tribunal said that independent information indicated that extortion is all too common in Mumbai, that businesses of all kinds are targeted and that Shiv Sena gangs are among the extortionists. The tribunal said that the applicant agreed that he was not a victim of extortion on account of his religion, but rather because he had assets wanted by others.
The tribunal therefore concluded that what had happened to him was extortion. It did not consider that the applicant's Muslim religion was the essential and significant motivation for what occurred, even though the Hindu Shiv Sena gangs were largely responsible. The tribunal said that although the extortionists were Hindu and the victim was Muslim, it did not establish that the reason for the action was based on religion. Consequently, the tribunal found that what had happened to the applicant leading up to the loss of his property was not based on the convention reasons of race, religion or nationality or political opinion.
Although it did not appear to be specifically claimed by the applicant, the tribunal considered whether what had happened to the applicant could have been because he belonged to a particular social group. Membership of a particular social group is one of the reasons for persecution covered by the convention. The tribunal considered the groups to which the applicant could be seen to belong were business operators, property owners or people with money. The tribunal did not consider that they could comprise a particular social group for a refugee application purpose. The tribunal considered the characteristics of the members of those groups are diverse. They might share some common interests or concerns, but they could not otherwise be regarded as united and distinguished from the rest of society.
The tribunal gave a further reason for rejecting a claim based on social grouping. It did not consider that the applicant's membership of that group would be the essential and significant reason for the extortion. The tribunal concluded that the extortionists' motivation was the extraction of money or property from the applicant and that this did not come within the Refugees Convention definition.
In the written amended application and contentions, the applicant makes the following complaints: first, the tribunal did not take into account all the applicant's claims; second, that the tribunal did not act in good faith because it relied only on country information which was relied upon by the delegate in its decision, and it did not make its own independent inquiry into the application. The third is the tribunal did not ensure that all information which was before the delegate was placed before it, and fourthly, the tribunal committed an error of law by accepting that the applicant was the victim of extortion, harassment and intimidation and yet concluded that it was not perpetrated for a convention-related reason.
In oral submissions, the applicant referred to the need to investigate his claims of what had occurred to him in India. There is no error of law in the tribunal's decision. There is not a jurisdictional error. The tribunal considered all of the applicant's claims. It went through the narration of extortion demands and violence that the applicant referred to. It accepted the essential part of his claim that he was subjected to violence, harassment and demands against himself and his family, such that it forced him to transfer his property. It did not accept some of his claims in relation to the police and charges. It gave its reasons for not accepting those claims. They were matters of fact for the tribunal and no error of law is shown.
The tribunal was careful to set out all possible bases of claim for the applicant. The primary claim of the applicant was based on his Muslim religion. That could give rise to a claim for reasons of race, religion, nationality or political opinion. The tribunal concluded that none of those applied because it found as a matter of fact that the motivation of the extortionists was simply extortion, the acquisition of money or property, not the applicant's religion or his race, nationality or political opinion.
In considering the question of whether he was a member of a particular social group the tribunal, first of all, found that there was not a particular social group within the meaning of the convention. That is a finding of fact which was a matter for the tribunal. It also considered that even if the applicant did belong to a particular social group, the reason for the extortion was not being a member of that group; it was the desire to extract money or property from the applicant. The tribunal did take into account all of the applicant's claims.
The second ground is that the tribunal did not make its own independent inquiry into the application and relied only on country information relied upon by the delegate. It is not apparent from the reasons that is so. The relevant country information is something for the tribunal to determine and it has referred to country information which covers all the relevant issues; that is, the relationship between Muslims and Hindus in India, the state of religious freedom in India, the condition of the judiciary and information about criminal gangs conducting extortion. There is no basis for saying that the tribunal did not act properly in the way it dealt with country information.
The third ground is the tribunal did not ensure that all information which was before the delegate was placed before it. There is no evidence that is the case. The tribunal in fact says that it had regard to the material referred to in the delegate's decision. There is no evidence before the Court that the tribunal did not have all information which was before the delegate.
The fourth ground alleges that the tribunal committed an error of law by accepting that the applicant was a victim of extortion, harassment and intimidation, yet determining that the conduct was not perpetrated for a convention-related reason. That does not raise a question of error of law. The tribunal made that finding as a matter of fact. The matter of fact was a matter for the tribunal.
The applicant is unrepresented, but even if the application to this Court could have been stated more fully, overall, no error of law or jurisdictional error can be seen in the tribunal's decision. The tribunal carefully reviewed the applicant's evidence and claims and made findings of fact which meant that the applicant's claim must fail. Consequently, the application is dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate:

Date: