MZWQB v Minister for Immigration
[2005] FMCA 720
•2 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWQB & ANOR v MINISTER FOR IMMIGRATION | [2005] FMCA 720 |
| MIGRATION – Persecution – Convention related persecution – lack of nexus to Convention. |
| Judiciary Act 1903, ss.39B Migration Act 1958 (Cth), ss.91R(1), 430B(4) |
| Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 SXCB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 102 |
| Applicants: | MZWQB & MZWQC |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 1106 of 2004 |
| Judgment of: | O'Dwyer FM |
| Hearing date: | 2 May 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 2 May 2005 |
REPRESENTATION
| First Applicant: | In person (assisted by interpreter, Ms Chopra) |
| Second Applicant: | No appearance |
| Counsel for the Respondent: | Ms S. Moore |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Application for Review filed on 25 August 2004 is dismissed.
The Applicant pay the Respondent's costs fixed in the sum of $5,800.00 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1106 of 2004
| MZWQB & MZWQC |
Applicants
And
| MINISTER FOR IMMIGRATION |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Introduction
I might say from the outset, there is no reason why I should doubt your fear as being a genuine fear and that you are at risk if you were to return to India. That is a concern to you, your wife and your family; as it is a concern to me. But my role here today is a legal role, and I have a responsibility to make a determination based upon what the law requires. The nature of these sorts of review hearings can be very technical.
Applicants in your position are often greatly assisted by having legal representation. But having said that, I am satisfied after what I have seen, read and heard today that your interests have been expressed fully, even without the assistance of a legal representative. Putting it another way, I don't know if a legal representative could have helped you greatly at this hearing. The reason I say that is that the issue in this particular review is a very simple issue, and that is the one I have already alluded to during the hearing. For you to have been successful at the Tribunal, you would have had to show a nexus between your political activities or beliefs and the persecution that you would suffer at the hands of the debt collectors.
Both at the Tribunal hearing and in your contentions of fact and law, and again in the submissions you have made here today, it is quite evident that there is no connection between the persecution you fear, justifiably, and a Convention reason. The Respondent's contentions of fact and law are quite detailed. I know that you have been provided earlier with a copy of these and have had an opportunity to consider them. I do not propose to go through these contentions of fact and law and simply read them out, but I do say that I do adopt them as being a correct statement of the law in relation to this review. [Annexed is a copy of the Respondent’s relevant Contentions of Fact and Law]
I conclude by saying that I cannot find any error on the part of the Tribunal whether in law or otherwise, let alone a jurisdictional error. The Tribunal has applied the law applicable correctly, has examined the facts, and has made findings that are probatively logical. I cannot, as I say, find any error in the Tribunal's decision. Accordingly, I am left with no alternative but to dismiss the application for review that was filed on 25 August 2004.
I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of O’Dwyer FM
Associate:
Date: 2 May 2005
ANNEXURE TO FM O’DWYER’S EX TEMPORE DECISION
GIVEN ON 2 MAY 2005
Respondent’s Contentions of Fact and Law
Introduction
This is an application pursuant to s39B of the Judiciary Act 1903 (Cth) for judicial review of a decision of the Refugee Review Tribunal on
30 July 2004[1]. By that decision the Tribunal affirmed a decision of a delegate of the respondent not to grant the applicants a Protection (Class XA) Visa.
[1] The Tribunal’s decision is dated 9 July 2004 but it was handed down on 30 July 2004. According to s430B(4) of the Migration Act 1958 (Cth), the date of the decision is the date on which the decision is handed down.
Factual background
The applicants are a husband and wife who claim to be citizens of India. They arrived in Australia on 29 January 2003. On 25 February 2003 they applied to the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) for a Protection Visa (Class XA) under the Migration Act 1958 (Cth) (“the Act”) [CB4-32].
The applicant husband was the only person who made specific claims to be a refugee. The applicant wife was included on the application as a member of the family unit. Therefore, for convenience, the applicant husband will be referred to as the applicant in these contentions.
No other family members were included in the visa application. However the applicant and his wife have infant twin Sons (born
4 November 1999) who remain residing in India.
At the time of applying for the visa the applicant was residing in Griffith, New South Wales and authorised a Mr Kumar of Intraworld Immigration Services to act as their migration agent.
On 13 March 2003 a delegate of the respondent refused the application [CB 35-46] and on 20 March 2003 the applicant applied to the Tribunal for review of that decision [CB 47-50].
On 16 February 2004 the applicant advised the Tribunal that they no longer wished Mr Kumar to be their authorised recipient and advised that a Mr Tanari of Servicelinks Australia Consultancy in Footscray was authorised to receive all documents in relation to their application to the Tribunal [CB 54].
On 26 April 2004 the Tribunal invited the applicant to attend a hearing to give oral evidence and present arguments in support of his claims [CB 52-53]. According to that letter the applicant’s postal address was in Mildura, Victoria. The applicant, through Mr Tanari, responded in writing to the invitation [CB 54]. In that response the applicant advised that he did not want the Tribunal to take any oral evidence from any witnesses.
A hearing of the Tribunal was held on 4 June 2004. The applicant gave evidence and was assisted in doing so by an interpreter and Mr Tanari. The applicant’s wife did not appear as a witness or otherwise attend the hearing.
On 30 July 2004 the Tribunal delivered it written reasons for decision [CB 59-71]. A copy of the Tribunal’s reasons was sent to the applicant by registered post [CB 55-56].
On 25 August 2004 the applicant applied to this Court for judicial review of the Tribunal’s decision [CB 1-3]. The application was filed for, and on behalf of, the applicant by Mr Joseph Belbruno, solicitor.
The applicant’s claims before the Tribunal
The applicant’s claims and evidence are Set out in the Tribunal’s reasons at [CB 62-65]. The Tribunal recorded the following as a summary of the claims initially made by the applicant in his visa application:
·He was born in Town A in State B in India in the mid-1970s. He speaks, reads and writes several languages including English, and his religion is Hindu.
·He left India with his wife because of his fear of being persecuted due to a heavy debt on him and a different political opinion.
·He belongs to Party C as an active member. He borrowed money from moneylenders for a business and other purposes. He could not return the money in time as he lost it all in his business which he was planning so establish and run successfully. The opposite group belongs to Party D are linked to them and other extremist groups.
·When he could not return the money back by the due date they threatened to kill him and his family and damage his property. He applied for a restraining order from the Court and got one, but still the moneylenders attacked him and beat him up severely. He was hospitalised for several days.
·One of the moneylenders has strong links with Party D and other extremist groups, and they belong to Party D. They have threatened dire consequences if he does not return the money with interest within the stipulated time. He has reported the matter to the police and the Court but no proper action has been taken so far.
·It is the moneylenders from whom he borrowed money and the local Mafia with extremist groups of Party D that will harm him if he goes back to India.
·The moneylenders are very strong. As he belongs to Party C which is the opposite group to Party D in the State, he has no doubts that the moneylenders with the help of the Mafia and extremist groups will kill him and his family.
·They are receiving constant threats to their lives. Though he has party support from Party C he is not strong enough financially to face them and protect himself and his family.
·He has a restraining order from the Courts and he lodged a complaint with the police but no proper action has been taken, and they were receiving constant threats whilst living in India. They are still looking for them to get their money back, otherwise they are ready to kill them. The authorities cannot protect them because the moneylenders are very strong and linked with the Mafia and extremist groups. They can locate him anywhere in the Country.
Oral evidence at the Tribunal hearing
The applicant’s oral evidence at the Tribunal hearing can be summarised as follows:
·
The applicant confirmed that he was born in State B, in India and his parents and one sibling are currently living there.
He has two children who were born before he travelled to Australia. One child is currently living with his parents and the other with his wife’s parents;
·He borrowed money to establish a business in Town F, in State B. Initially the business was on a very small scale, then after 1½ years (in the early part of 2000) it was going well so he borrowed money to invest in the business;
·The loan was arranged through a friend of a friend from private moneylenders and the total amount of the loan was many thousands of rupees;
·With the funds he purchased stock and paid for a lease on a shop;
·There were no written documents for the loan;
·The agreement was that he was to pay part of his profits to the lenders for interest on the loan and repay the whole loan and more interest after one year;
·He lent some of the money to other shopkeepers and they were to repay him after several months but they did not repay the money and he was receiving no profits from his business;
·Early in 2001 people from the moneylenders came to his shop and asked him to write a cheque for the full amount as security and was told that when he received repayment of funds he had lent he could then repay the loan which he did but did not have enough money to cover the cheque and he never repaid the money he had lent to others so they kept adding more interest to the loan;
·He was threatened that if he did not repay he would be beaten up;
·More than a year later the moneylenders came to his shop and beat him up and he had to go to hospital for several days for treatment;
·He went to Court to report the incident but by this time the total amount of the loan with interest was many more thousands of rupees;
·He left India some months after the assault had occurred but there were no further assaults during that time because he had reported the matter to the police;
·When he reported the mailer to the police they said he had borrowed the money so lie would have to pay it back and although the police made a “First Information Report” they did not take any action;
·His friend helped him to obtain a visa to come to Australia through a consultant;
·The moneylenders keep making demands of his family and harassing them and know he is in Australia and they assume he will be making money here and that he should be sending it back to repay the debt;
·If he cannot repay them they can do anything to him and he believes that they will break his arms and legs and will bother his family;
·They send messages though his family that he must come back to India to discuss the situation and his wife’s family live in the same town as his family but they have not been harassed in relation to the loan;
·The people he owes the money to are very well connected with Party D. He was attached to the Party C and was a member in recent years, but he was not very attached to them. If he had sufficient money he could have used his political connections to help settle the debt, but he is not in that position;
·There had recently been an election and Party D is now very strong. His political involvement with Party C was only minor – he voted for the party and went to some meetings with friends;
·He has never come to any harm as a result of his political activities in support of Party C.
The Tribunal’s reasons record that it specifically asked the applicant whether there was any connection between his membership and support of Party C and the money lenders, to which the applicant responded that there was no connection however now Party D was very strong he was much more fearful that the police will not protect him. Specifically, the taped record of the hearing records the following question and answer:
TRIBUNAL: Does your involvement with the BJP - is that in any way connected with the problems you are having with the moneylenders?
APPLICANT: No.
If necessary the respondent will provide the Court with a copy of the hearing tape or transcript of the hearing.
The Tribunal’s decision and reasons for decision
In reaching its decision the Tribunal had before it the Department’s file which included the protection visa application and the delegate’s decision record. It also had regard to other material available to it from a range of sources.
The Tribunal’s findings and reasons are set out in its written reasons at [CB 66-71].
The Tribunal accepted as truthful the account given by the applicant of his experiences in India. It accepted that he borrowed a large sum of money from private moneylenders in an undocumented loan intending to establish a business and that he spent some of those funds in buying stock and leasing a shop and also lent some of the funds to other local merchants who did not repay them. The Tribunal also accepted that when the applicant was unable to repay the loan and interest after the agreed time, representatives of the moneylenders came to the applicant’s shop, threatened him and assaulted him and be needed medical treatment following the assault. The Tribunal also accepted that the applicant reported the assault to the police and obtained an order in the nature of a restraining order from a Court and that after this he continued to receive verbal threats and demands to repay the loan.
The Tribunal also found that the applicant left India in the hope he would earn sufficient money in Australia to be able to repay the loan but was unable to do so and the representatives of the moneylenders have continued to make enquiries of the applicant’s family regarding his whereabouts and when he will return to India. The Tribunal accepted that the applicant has a genuine subjective fear that he will be harmed by the moneylenders or their representatives if he returns to India.
The Tribunal found that the applicant had suffered persecution as that term is used in the Convention and the Act and that because he has not repaid the debt it may happen to him again if he returns to his local town now and for so long as the debt remains unpaid. As a result of these findings the Tribunal held that there was a real chance that the applicant would suffer serious harm if he returns to his town and in unable to repay the debt.
However, the Tribunal held that an applicant for refugee status who has established a fear of persecution must also show that the persecution which they fear is for one of the reasons enumerated in Article 1A(2) of the 1951 Convention relating to the Status of Refugees and that the reason or reasons must constitute the essential and significant reason for the persecution for the purposes of s9lR(1)(a) of the Act.
The Tribunal held that the phrase “for reasons of” used in the Convention involved an element of motivation on the part of the persecutors and that the motivation for the infliction of the persecution and the objective sought to be attained must be found in the singling out of one or more of five attributes – race, religion, nationality, membership of a particular social coup or political opinion.
The Tribunal held (at CB 68-69) as follows:
“In this case I am not satisfied that there is any nexus at all between the harm feared by the applicant and any Convention reason. In his initial application the applicant claimed that those who he feared were members of Party D, and that he himself had been a member of Party C, and the fact that he and the moneylenders belonged to different political parties had some relevance to his situation. However, at the hearing whilst the applicant confirmed that he had in fact been a member of Party C, and that he believed the money lenders were members or supporters of Party D. He acknowledged that there was no connection between his political activities or beliefs and the situation he found himself in, fearing that he would be again assaulted because of his inability to repay the debt. The only relevance of his political opinions or beliefs is that because he has no funds he is unable to approach more powerful people in Party C to intercede or negotiate on his behalf I am satisfied that the applicant is being pursued solely because he owes a large sum of money which he is unable to repay, and those who have threatened and harmed him are motivated solely by the desire to have the debt repaid.”
The applicant’s grounds of review and contentions of fact and law
The applicant’s application filed 25 August 2004 is not particularised. It states the following as the grounds of review:
“1. The Respondent failed to observe the proper procedures with regard to the Applicant and to act in accordance with substantial justice.
2. The Respondent exceeded its jurisdiction”
The applicant seeks a declaration that the Tribunal’s decision is invalid and contrary to law, that writs of mandamus, prohibition and certiorari or and injunction and declaration issue against the respondent, orders setting aside the Tribunal’s decision and that ‘”the respondent give further consideration according to law to all matters to which the decision relates, subject to such directions as the Court sees fit”.
The applicant’s contentions of fact and law, prepared by the applicant’s former solicitor are limited to five paragraphs. Given their brevity, they are reproduced below:
“1. The Tribunal erred in law and exceeded its jurisdiction in that it addressed the wrong issue and took into account irrelevant considerations or failed to take into account relevant considerations in that it determined that the applicant did not fear persecution for political reasons if returned to India.
2. The Tribunal found in fact that the applicant only feared ‘persecution’ as a result of a monetary debt that he had incurred in India but not as a result of his membership of a political party.
3. The Tribunal concluded in its findings that the applicant admitted at the hearing that there was no political ‘nexus” between his belonging to a political party in India and his fear or persecution from members of an opposed political party.
4. In fact, the applicant always insisted that there was a ‘nexus’ between his fear of persecution and his political affiliation. Although the initial cause of his problems for his difficulties was a monetary debt, the fact remains that the parties from whom he fears persecution have political affiliations and will use their political links to harm the applicant.
5. As a result, there is a political ‘nexus’ between the applicant’s fear of harm and his political affiliations in that the parties that are seeking to recover the alleged debt from the applicants are acting through political channels motivated by the applicant’s affiliation with an opposing political party.”
The respondent’s submissions
The applicant has not pursued each ground of review in his application in his contentions of fact and law. These contentions of fact and law are in response to those matters raised in his contentions of fact and law as drafted by his solicitor. The respondent has assumed that all other matters in the application not pursued in the contentions of fact and law have been abandoned. Should the applicant seek to raise any further matters at the hearing of his application, the respondent may seek the leave of the Court to make further written or oral submissions.
Paragraph 1 of the applicant’s contentions claims that the Tribunal addressed the wrong issue and took into account irrelevant considerations or failed to take into account relevant considerations in that it determined that the applicant did not fear persecution for political reasons if returned to India. This claim does not identify what the wrong issue or the irrelevant or relevant considerations.
The respondent therefore cannot respond to it with any substance save to say that the Tribunal concluded that the applicant is being pursued solely because he owes a large sum of money which he is unable to repay and those who have threatened and harmed him (two individuals) were motivated solely by the desire to have the debt repaid. This was a finding of fact by the Tribunal which it was entitled to make on the evidence before it, particularly the fact that the applicant’s evidence that there was no connection between his political membership of the BJP and the problems he was having with the moneylenders.
Paragraphs 2 and 3 of the applicant’s contentions of fact and law are accurate statements of the findings of the Tribunal. They do not advance any legal connection on behalf of the applicant.
It therefore appears that the only real argument put by the applicant is that contained in paragraphs 4 and 5 of his contentions. However it is submitted that the applicant has failed to identify any jurisdictional error in the Tribunal’s reasons. The submissions ignore the fact that the oral evidence of the applicant was that there was no nexus between his membership of a political party and his problems with the moneylenders.
The Tribunal was correct in identifying that the Act requires that a Convention reason or reasons must constitute at least the essential and significant reason for the persecution (s91R(1)(a)). Further, the Tribunal did not err in its approach to the legal issues in relation to a requirement that there be a nexus or connection between the persecution feared and one of the five attributes in Convention definition of a refugee – namely race, religion, nationality, membership of a particular social group or political opinion (see for example Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 and see too SXCB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 102 at [21]-[23]). There was no nexus between the applicant’s political opinion (or any other Convention reason) and the persecution he suffered from the moneylenders.
The applicant’ evidence positively disavowed this. The Tribunal found that the applicant was being pursued solely because he owed a large sum of money which he was unable to repay and those who had threatened and harmed him were motivated solely by the desire to have the debt repaid.
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