Mzygi v Minister for Immigration - [2010] FMCA 169

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYGI & ORS v MINISTER FOR IMMIGRATION

[2010] FMCA 169

MIGRATION – Review of decisions – Refugee Review Tribunal – visa – protection visa.

Migration Act 1958 (Cth)

SZLAN v Minister for Immigration and Citizenship [2008] FCA 904 (2008) 171 FCR 145; (2008) 102 ALD 131
Rajaratnam v Minister for Immigration and Multicultural Affairs [2000] FCA 1111; (2000) 62 ALD 73

Applicant:

MZYGI, MZYGJ, MZYGK, MZYGL

Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

File Number:

MLG 1120 of 2009

Judgment of:

Riethmuller FM

Hearing date:

12 February 2010

Date of Last Submission:

12 February 2010

Delivered at:

Melbourne

Delivered on:

4 June 2010

REPRESENTATION

Counsel for the Applicants:

Ms Milsom

Solicitors for the Applicants:

Asylum Seeker Resource Centre

Counsel for the First Respondent:

Ms Holt

Solicitors for the First Respondent:

DLA Phillips Fox

ORDERS

The applicants’ application for an extension of time be dismissed.
The application filed 28 August 2009 be dismissed.
The applicants pay the first respondent’s costs fixed at $5865.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1120 of 2009

MZYGI, MZYGJ, MZYGK, MZYGL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

REASONS FOR JUDGMENT

The applicant and his family are citizens of India. They arrived in Australia on 21 August 2008 and entered the country on visitors’ visas. On 12 September 2008 the applicant lodged an application for a protection visa for himself and his family. This application was refused on 11 December 2008. The applicant then applied to the Refugee Review Tribunal who affirmed the decision on 31 July 2009. The applicant now applies to judicially review the decision of the Refugee Review Tribunal.
The applicant’s claim arises out of events that took place in the area in which he lives in India. He was a farmer, having amassed some money from a number of years working in Japan. He says that he and his family have a well-founded fear due to his membership of a particular social group and his actual or imputed political opinion. The thrust of the applicant’s claim is that he and his family were set upon by a Maoist group who extorted money from them, utilised their farm as a base and coerced the applicant to participate in illegal activities. The applicant says he is now wanted by the police in India.
The tribunal accepted that the state in which the applicant lived bordered another country and was an area where there were problems with Maoist guerrillas engaging in extortion and other criminal activities. It was also accepted that the police in India are often corrupt.
The applicant’s claims have changed during the course of the hearing process. Initially the applicant claimed that he and his family were harassed and threatened by PR, whom he said was a member of the Maoist group. It transpired that PR was a senior journalist in India and the tribunal rejected the proposition that PR was involved in harassing a small farmer from a different state to that in which PR lived. In subsequent hearings before the tribunal the applicant changed his evidence and claims, it seems as a result of recognising that it was not credible that PR had engaged in any form of persecution of the applicant or his family. At that point the applicant claimed that he had continued to be the subject of threats and extortion at the hands of B and that in substance he had the wrong name for the person engaged in the extortion.
From the applicant’s perspective this was not a significant difference, as he set out in the letter to the tribunal on 26 July 2009, saying –
I am [the applicant] and I would like to say that you said me in the third interview that what was going on was totally different but I would like to say that whatever they told us we told you their name and what they do, etc. And now with the Police his name is different and all the other things are still same. He did robbery, and robbed rich people and we have already told you all about that. So what’s the difference his name and the things he did were still same. So we are not sure if his name was [PR] may be he was lying for his name. So you know what I mean. You said that the Police is saying that he is your friend but I would like to say that he is not my friend he came to my house and he asked for the rich people and robbed them. When they asked us such things we don’t want to tell them but if someone frightens you by saying that if you don’t tell us we will kill your family. Would you tell them or not. That’s what happened with me.
The tribunal was unimpressed with the applicant’s credibility, making a number of adverse findings. The tribunal concluded that a bank statement had been altered to give the impression that the applicant had had sufficient funds to make a payment alleged by the applicant to have been extorted from him (para 114). In paragraph 115 the tribunal rejected the applicant’s claim that there was harassment or threats by PR and rejected claims that there had been any torture or extortion by Maoists, concluding that the applicant had fabricated these claims. The tribunal concluded that:
[115] …The tribunal does not accept that the applicants were the victims of extortion or torture or that they will be subject to continuing physical harm and extortion demands from Maoists or any other extortionists.
The tribunal concluded that the motivation of any extortionists was financial gain and that the applicant had not been persecuted for reasons of his political opinion or for any other convention-related reason. It appears clear that, from paras. 115 to 116, the tribunal effectively rejected the applicant’s claim with respect to harassment or extortion from Maoists.
The tribunal went on to state:
[117] The first named applicant has also claimed that he is wanted by the police because of an alleged association with a robber called [B]. Even if the Tribunal is prepared to accept that the first named applicant has had an association with [B], which involved some harassment of the first named applicant, the Tribunal is not satisfied that the harassment from [B] and his associates was for a Convention reason. The applicant told the Tribunal that [B] was part of the group that the applicant had previously claimed harassed the applicants for money and information about the location of well off people in the district. The Tribunal has considered whether the first named applicant was targeted because he was seen to be part of a group of relatively well off farmers in his area. However, the Tribunal does not accept that there is any convention reason for the behaviour of the group who the applicant claims harassed and persecuted him and so s.91R(1)(a) is not met.
The applicant was also concerned that the police would treat him unfavourably because of his imputed connection with B who he maintained was part of a Maoist group when arguing the appeal.
The tribunal concluded:
[119] The Tribunal is of the view that if the police are looking for the first named applicant because he was associating with [B] or criminals or for any other reason, then the police are pursuing a legitimate state objective such as the protection of the State and its citizens. Enforcement of a generally applicable criminal law, or the enforcement of laws designed to protect the general welfare of the state, would not ordinarily constitute persecution. Whilst the Tribunal accepts that the police in India may be inefficient and often corrupt, the Tribunal is not satisfied that the police would persecute the applicant for a Convention reason or that there is a real chance that the police would enforce any laws of general application selectively, or that any such selectivity of application would be for a Convention ground.
The applicant pursued two grounds of appeal:
a)That the tribunal failed to properly consider whether or not the applicant was persecuted by reason of him being a member of a social group, being rich farmers; and
b)That the tribunal failed to consider whether the applicant had a reasonable fear of persecution at the hands of the police through less favourable treatment as a result of an imputed political opinion (imputed connection with the Maoist groups).
The argument that was put to the court at the hearing was limited to these two issues.
In support of ground 1 the counsel for the applicant referred to the decision of Gray J in SZLAN v Minister for Immigration and Citizenship [2008] FCA 904 (2008) 171 FCR 145; (2008) 102 ALD 131, where his Honour said:
[79] It would seem to me that the Tribunal identified a relevant particular social group, being wealthy Nepalis, but failed to address whether the extortionate demands placed upon the first appellant were simply because of his perceived personal capacity to provide an advantage for a self interested extorting party or whether the extortionate demands were placed upon the first appellant because he belonged to a particular social group.
[80] In an extortion case, as indicated above, there is the possibility that the extortive activity has a dual character; it may be motivated by a personal interest on the perpetrator’s part but also may be Convention-related. Given that the demands placed upon the first appellant were said to be demands by a Maoist union, the Tribunal should, in my opinion, have addressed whether the persecution of the first appellant was for a Convention-related reason as a member of the particular social group made up of wealthy Nepalis and not simply motivated by a personal interest on the perpetrator’s behalf. It should have recognised that extortive activity can have a dual character and considered whether the essential and significant reason for such activity was Convention based.
Counsel also referred to Rajaratnam v Minister for Immigration and Multicultural Affairs [2000] FCA 1111; (2000) 62 ALD 73, where the court said:
[48] In a particular setting, then, extortion can be a multi-faceted phenomenon exhibiting elements both of personal interest and of Convention-related persecutory conduct. For this reason the correct character to be attributed to extorsive conduct practised upon an applicant for refugee status is not to be determined as of course by the application of the simple dichotomy: "Was the perpetrator's interest in the extorted personal or was it Convention related?" In a given instance the formation of the extorsive relationship and actions taken within it can quite properly be said to be motivated by personal interest on the perpetrator's part. But they may also be Convention-related. Accordingly any inquiry concerning causation arising in an extortion case must allow for the possibility that the extorsive activity has this dual character. The central issue to this ground of appeal was whether or not the tribunal had rejected the proposition that B was a Maoist when making the findings that it did. If the tribunal had rejected such a proposition having proceeded upon the basis that B was simply a criminal it is difficult to see that there was persecution of a social group, rather opportunistic crime. If, however, the criminal B could have been a member of a Maoist group then the tribunal needed to go on to consider the issues as described in the quote set out above.
It appears that this issue is also central to the second ground. In support of ground 2 the applicant argues that the tribunal failed to consider whether or not the applicant would have been the subject of less favourable police treatment (police abuse) as a result of an imputed association with Maoists. Again, the critical issue is whether or not the tribunal had made a finding that B was not a Maoist (or at least not imputed to be a Maoist), as the ground cannot be sustained if B was simply a common criminal. If the tribunal had failed to determine B’s actual or imputed connections with the Maoist group, then the question remains open and ought to have been determined by the tribunal.
The finding of the tribunal at the end of paragraph 115 appears to squarely deal with this question. The tribunal said:
The tribunal does not accept that the applicants were the victims of extortion or torture or that they will be subject to continuing physical harm and extortion demands from Maoists or any other extortions.
Given the nature of the findings that follows it appears clear that the term “extortionist” at the end of paragraph 15 was intended to be “extremist”.
The tribunal went on to conclude that the motivation for any harassment or extortion the applicant did suffer was simply financial gain. Taken in context it appears clear that the determination of the tribunal was to the effect that B was not a Maoist or part of a Maoist group, but simply a criminal seeking to steal or extort the farmers in the district. The tribunal said, at the end of paragraph 117:
The tribunal has considered whether the first-named applicant was targeted because he was seen to be part of a group of relatively well off farmers in his area. However, the tribunal does not accept that there is any convention reason for the behaviour of the group who the applicant claims harassed and persecuted him and so section 91R(1)(a) is not met.
The context of para. 119 appears to make it clear that the tribunal were considering whether or not any harassment or unfavourable treatment from the police that followed from the imputed association of the applicant with B was undertaken on the basis that B was simply a criminal and not a member of a Maoist group.
I am not persuaded the tribunal failed to consider whether or not B was a member (or imputed member) of a Maoist group, but rather that the tribunal concluded that there was no involvement by Maoists, and that it was a case involving a common criminal. In these circumstances it cannot be suggested that the tribunal had failed to consider a relevant integer of the claim as, on the tribunal’s findings, there were no Maoist connections by the persons who were harassing and extorting the applicant. Thus, the conclusion that there was no convention reason for the behaviour of the group was easily reached by the tribunal. In the context of this case, detailed discussion of the factors set out in the cases above was not called for, beyond the statements made by the tribunal in the reasons.
Similarly, with respect to the issue relating to the police, once it is accepted that B was not a Maoist or imputed to be a Maoist it was not open to the tribunal to conclude that the applicant could be imputed to be a Maoist by the police.
Ultimately it appears to me that this case turns upon the findings of fact by the tribunal in rejecting the evidence of the applicant and concluding that the applicant was not the subject of harm or extortion demands from Maoists.
In the circumstances I would therefore dismiss the application.
In this case the applicant also sought an extension of time within which to bring his application. At the hearing I heard argument on the application itself, on the basis that I would make substantive findings and then determine the question of extension of time if necessary. Given my conclusions on the substantive issues an extension of time serves no purpose as the applicant cannot succeed in this case. I therefore dismiss the applicant’s application for an extension of time.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Associate: Katherine Sudholz

Date: 1 June 2010