MZXAI v Minister for Immigration
[2006] FMCA 170
•17 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXAI v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 170 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – tribunal findings against applicant on credit – no jurisdictional error – application dismissed. |
| Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 ReMinister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 |
| Applicant: | MZXAI |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG627 of 2005 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 23 January 2006 |
| Date of Last Submission: | 23 January 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 17 February 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr Randall |
| Solicitors for the Applicant: | Access Law |
| Counsel for the Respondent: | Mr Heerey |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application filed on 26 May 2005 is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG627 of 2005
| MZXAI |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant seeks orders for judicial review of a decision of the Refugee Review Tribunal.
The applicant is a 30 year old male Indian citizen. The applicant claims that whilst studying at university he became a member of an organisation, the Peoples War Group (PWG). He said that he was a member of the organisation for six months as a dancer and volunteer, but that after his resignation he was accused of being a police informer and threatened by the PWG.
The applicant came to Australia on 3 April 2004 on a student visa. On 10 May 2004 the applicant applied for a protection visa. On 15 June 2004 his student visa was cancelled for non-compliance with visa conditions. The delegate of the Minister refused to grant a protection visa on 3 September 2004.
The applicant sought a review before the Refugee Review Tribunal on 30 September 2004. He attended and gave oral evidence before the Tribunal on 16 December 2004. The Tribunal handed down its decision affirming the decision of the delegate on 6 May 2005. The substance of the findings by the Tribunal are as follows at pages 17 and 18 of its judgment:
The essence of the applicant’s claims is that he will be persecuted by the PWG because he us seen by them as an informer. The contention is that he will be persecuted as an ex-member and that the Indian authorities are powerless to protect him, in fact he would be killed by them because of his membership of the PWG.
The Tribunal considers that the evidence provided indicates that the applicant did have some relationship with the PWG, mainly as a person who had been engaged, or volunteered his services, from time to time to perform dances in villages at which gathering members of the PWG might have been present. The Tribunal does not accept that the applicant was a member of the PWG, his involvement was sporadic and tangential and according to his evidence, he was not privy to any knowledge about the actions carried out by this group.
The Tribunal accepts that he may have met someone called Ramesh who was a member of the group; it accepts that this person may have been killed by the police in an encounter on September 16 2003; it accepts that the applicant may have been distraught following his death and that he was sufficiently affected to require some psychiatric help. The applicant has stated that he saw this person Ramesh only when he was giving performances, the Tribunal finds that the claims of a close association with the applicant is not consistent with the applicant’s lack of involvement in the operational or administrative aspects of the PWG, nor with the frequency of the described opportunities for them to be seen to be friends or to have some kind of association. The Tribunal accepts that the applicant was taken aside by the PWG and reminded not to reveal anything that he had seen of their work. The Tribunal does not accept that these circumstances would lead to the applicant being considered a police informer; the Tribunal dose not accept, given the examples of retribution by the PWG evident in the cited information, that had they actually considered him to be a police informer, they would have simply taken him aside and warned him not to say anything to the police.
…
The Tribunal discussed with the applicant the origin and motivation of the letters sent to the department and the Tribunal by a number of persons...The applicant stated that these letters had been organised by his father and the signatories are friends of his father’s. Under the circumstances, the Tribunal finds these letters to be self-serving and of no probative value. The Tribunal gives no weight to them.
In light of the discussion and information above, the Tribunal finds that the applicant does not face a real chance of persecution for the Convention reason of imputed or actual political opinion should he return to India, nor or in the reasonably foreseeable future. It thus finds that he does not have a well-founded fear of Convention persecution.
Grounds of review
The applicant relies upon ten different grounds in his application for judicial review. Those grounds are as follows:
a)The tribunal misunderstood and/or misconstrued a criterion about which it had to be satisfied for the purposes of s.65 being the Convention ground of membership of a particular social group consisting of members of the People’s War Group (“PWG”) in India.
b)The tribunal failed to determine whether the applicant was a member of a particular social group as that expression is used in article 1A(2) of the Refugee’s Convention as amended by the Refugees’ Protocol (“the Convention”).
c)The tribunal failed to determine whether the applicant was a member of more than one “particular social group” as that expression is referred to in article 1A(2) of the Convention.
d)The tribunal misunderstood and/or misconstrued a criterion about which it had to be satisfied for the purposes of s.65 being the convention ground of membership of a particular social group being previous members of the PWG being at risk of physical harm in India.
e)The Tribunal misunderstood and/or misconstrued a criterion about which it had to be satisfied for the purposes of s.65 being the Convention ground of membership of a particular social group being informers or previous members of the PWG being at risk of physical harm in India.
f)The Tribunal failed to determine whether the applicant’s status as an informer or perceived informer against the PWG constituted membership of a particular social group as that expression is referred to in article 1A(2) of the Convention.
g)As a corollary, the Tribunal failed to determine whether the applicant was a refugee “owing to well founded fear of being persecuted for reasons of … membership of that particular social group”.
h)In determining that the Tribunal was not satisfied that the applicant was a person to whom Australia has protection obligations under the Convention, the Tribunal did not properly or at all determine whether it was reasonable in the circumstances to expect the applicant to relocate in another part of the applicant’s country of nationality.
i)The Tribunal, in determining that it was not satisfied that the applicant was a person to whom Australia has protection obligations under the Convention, failed to have regard to rational and probative material.
j)The Tribunal, in determining that it was not satisfied that the applicant was a person to whom Australia has protection obligations under the Convention, excluded rational and probative material totally from consideration in the balancing process.
Ground 1
This ground was argued on the basis that the tribunal failed to draw appropriate conclusions on the facts. The applicant argued that the findings by the Tribunal that the applicant was not privy to any knowledge about the actions carried out by the PWG is inconsistent with the Tribunal's finding that the applicant was taken aside by the PWG and reminded not to reveal anything about what he had seen of their work. The applicant says that this is also inconsistent with a finding that he was not a member of the PWG. It is said that logically if the applicant had no knowledge of the work of the PWG he would not need to be warned by the PWG.
I do not find that these findings of the Tribunal are illogical or contrary to the material before the Tribunal. It is common for groups acting contrary to the law or as insurgents to make such threats to people who may not be formal members of the group, but nonetheless tangentially connected or who have come in contact with the activities of the group. For example it is not unknown for such groups to make similar threats to householders or villagers in an area in which the group has been operating, in case such people have knowledge that may be of assistance to the authorities. For this reason, I find no internal inconsistency in the findings of the Tribunal. Having regard to the High Court decision in ReMinister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30, I do not find that this ground as argued is made out.
Ground 2
In support of ground 2 the applicant argues that the Tribunal failed to make a determination as to whether or not he was a member of a particular social group, as the expression is used in Article 1A of the Refugees Convention.
It appears that the Tribunal determined that the applicant was not a member of the social group which consisted of members of the PWG, but rather a group which consisted of those who had sporadic or tangential involvement with the PWG. In this respect I do not find any error in the way in which the Tribunal has determined the matter.
In the alternative the applicant argued that the Tribunal failed to determine whether or not he was at risk of persecution from the Indian authorities on the basis of being a person who had provided or volunteered his services from time to time at events arranged by the PWG. However, this does not appear to have been a case that was put forward by the applicant as the risk he feared if he returned to India. In fact, in his statement to the Tribunal he said that the police did not know he was involved with the PWG, and set out no material to indicate that he was at risk of police becoming aware of any former involvement with the PWG. The issue relating to the police appears to have been raised in response to the question of whether or not the applicant could expect protection from the authorities in India.
In the context of this case it does not appear to me to have been raised as a matter which the Tribunal needed to specifically determine and was not an integer of the applicant's claim.
The applicant also argued that the Tribunal's rejection of letters that were in support of the applicant, which had been organised by his father from friends of his father, was an error in the Tribunal's reasoning. The Tribunal concluded that the letters were, in the circumstances, in the nature of self serving material and of no probative value. The Tribunal gave no weight to them. I bear in mind the comments of the High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 that:
The reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.
Whilst the letters were not self serving in the sense of a previous consistent statement by the applicant, the Tribunal had open to it the option of concluding that no weight should be attached to them in the particular circumstances. This is a finding of fact which is open to the Tribunal: see ReMinister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30.
Ground 3
The third ground is that the Tribunal failed to determine whether the applicant was a member of more than one particular social group. In support of this ground the applicant referred to the arguments with respect to the previous grounds. The Tribunal has made determinations of the particular group of which the applicant was a member. In the context of this case the tribunal did consider the role and relationships of the applicant and then determined what social group he was with for the purpose of this consideration under the convention.
Ground 4
This ground is again largely a repeat of earlier grounds. When read as a whole it appears clear that the decision proceeded on the basis that the applicant brought his claim on the grounds that he was a person who had had some involvement with the PWG, but did not accept that he was a member of the PWG as such. It then proceeded to determine whether or not there was an objective fear of persecution in the sense required under the Convention and legislation having regard to the level of the applicant’s involvement with the PWG.
Ground 5 - 7
Grounds 5 though to 7 are a repeat of earlier grounds and fails for the same reasons.
Ground 8
It was argued under ground 8 that the Tribunal failed to determine whether or not it was reasonable for the applicant to relocate within India. Given the Tribunal's findings that the applicant was not at risk in the Convention sense there was no need for the Tribunal to go on to determine whether or not the applicant needed to relocate, as on the Tribunal's findings no relocation was necessary.
In this regard, there is no error in the reasoning process of the Tribunal.
Ground 9
Ground 9 was argued on the same basis as the previous grounds relating to membership of a particular social group. The applicant did not identify any significant or essential factual material or consideration that the Tribunal failed to have regard to.
Ground 10
Ground 10 was also argued on the basis of the alleged failure of the Tribunal to properly consider whether the applicant was a member of a particular social group. For the same reasons, this ground fails.
Conclusion
In substance, in this case, the Tribunal did not accept the evidence of the applicant: it found against him on credit. Such findings of a Tribunal are not properly the subject of judicial review as they are findings of fact. In the circumstances of this case I find no error on the part of the Tribunal that would amount to jurisdictional error.
I therefore refuse the application for review.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
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