MZYXV v Minister for Immigration

[2013] FMCA 45

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYXV & ANOR v MINISTER FOR IMMIGRATION & ANOR [2013] FMCA 45

MIGRATION – Refugee Review Tribunal – refusal of a protection visa – no matter of principle – application dismissed.

Migration Act 1958

First Applicant: MZYXV

Second Applicant: MZYXW

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 577 of 2012

Judgment of: Riethmuller FM

Hearing date: 26 October 2012

Date of Last Submission: 26 October 2012

Delivered at: Melbourne

Delivered on: 31 January 2013

REPRESENTATION

Counsel for the First Applicant: In Person

Counsel for the Second Applicant: In Person

Counsel for the First Respondent: Ms Whittemore

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The application filed on 18 May 2012 be dismissed.

2. The Applicants pay the First Respondent’s costs fixed at $5,400.

3. Any application to set aside or vary the costs order be filed and served within 14 days.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 577 of 2012

MZYXV

First Applicant

And

MZYXW

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The Applicants seek judicial review of a decision of the Refugee Review Tribunal made on 23^rd April 2012 which affirmed a decision of a delegate of the First Respondent to refuse the Applicants a protection visa.

2. The Applicants are husband and wife and citizens of India. Their claim for a protection visa is based upon the First Applicant’s (the husband) claim to have defected from the BJP political party in India. The Second Applicant (the wife) advised the Tribunal that she had no separate claim of her own and was applying for protection on the basis of being a member of the Applicant’s family unit (see Court Book 121 at para.71).

3. The Applicants alleged that the husband and his father had left the BJP as a result of concerns around corruption and joined the Congress party. They said that as a result of the husband’s hard work and donations the Congress party increased in popularity in his area and his profile increased. The husband said that this caused, in 2007, members of the BJP to warn him to stop campaigning for the Congress Party and to commence making donations to the BJP. He said that when he refused they ransacked his shop and assaulted him. He also said that the perpetrators of this violence had been looking for him at his home and had threatened his wife and his parents. He said that this was the reason for him leaving India to come to Australia and that he fears further threats from the BJP if he were to return to India. He also claimed that he would be at risk of torture, cruel or inhumane treatment and degrading treatment or punishment from the BJP if he were to return to India.

4. The Tribunal invited the Applicants to attend for hearing before the Tribunal. On the first occasion the hearing had to be postponed because an interpreter was not available. Ultimately the First Applicant appeared before the Tribunal and gave evidence in support of his claims. The Tribunal later invited the First Applicant to a further hearing and, following various administrative difficulties (a request for an adjournment by the Applicant, the lack of interpreter, confusion as to which hearing room was being used, and the impacts of flooding), the second hearing was eventually convened where both Applicants again gave evidence before the Tribunal.

5. The Tribunal proceeded to consider the matter both on the basis of a refugee claim and under the complimentary protection provisions. Ultimately the Tribunal accepted elements of the evidence of the first Applicant but found that he had embellished aspects of his past to strengthen his claims for protection. The Tribunal accepted that the Applicant had occasionally been harassed and threatened in his home town by members of the BJP and that on one occasion they ransacked his electronic goods store (see para.96 of the Tribunal’s decision).

6. It seems that at his first hearing the First Applicant’s evidence was that he was not present at the store at the time of the attack but heard about it from his employees, and at the second hearing his hand was cut by broken glass when he was fleeing the store. Not surprisingly the Tribunal preferred the Applicant’s earlier evidence.

7. The Tribunal also accepted that members of the BJP have visited the Applicants’ home and made threats against their family and that the husband was frightened by this and that he feels stressed. The Tribunal ultimately accepted that the First Applicant subjectively fears persecution and that the police would do nothing to prevent the harm that he fears. Ultimately however the Tribunal concluded:

   100. However, the Tribunal finds that the applicant’s fear of persecution is not well-founded, because the people whom he fears have had ample time to act on the threats of more serious harm. The applicant was very vague with dates in his evidence. When questioned about the home visits by the BJP people, he said it happened two times ‘for sure’. He said his son was about one and a half years old the first time. He said the second time was three or four months later but at that time only his wife and son were home, no one else was there. He gave his son’s date of birth as 9 December 2006. This would mean the first visit occurred in or around mid-2008 and the second visit towards the end of 2008. In his application for the visa, the applicant states that he entered Australia on 14 April 2010.

   101. The Tribunal finds that those whom the applicant fears had ample time to act on their threats, and as a result the threats of harm are hollow. Whilst the applicant claims that the people he fears will step up their pressure at election times, and the Tribunal accepts this may be the case, the Tribunal does not accept that an increase in pressure equates to the use of more serious methods, rather the demands for money may come more frequently. The Tribunal does not accept that the applicant, either resisting such demands, would face more serious harm, or acceding to them, would be put in an economic position such that he would no longer be capable of subsisting. It is clear from his evidence that whilst he characterises his business as ‘not so good’ at the moment, it is continuing to operate under the stewardship of his brother and derives instalment income from those who have purchased its goods.

   102. Based on all of the evidence, the Tribunal does not assess that the applicant faces a real chance or serious harm now or in the reasonably foreseeable future if he were to return to his home in India. Having found that the applicant does not have a well-founded fear of persecution it is not necessary to go on to consider if there is a Convention nexus for his claims or whether adequate state protection would be afforded to him. It also follows that the second named applicant does not have a well-founded fear of being persecuted for reason of her membership of the first named applicant’s family.        

8. When considering the complimentary protection claim the Tribunal said:

   111. Based upon his past experiences, the Tribunal is satisfied that there are substantial grounds for believing, as a necessary and foreseeable consequence of the applicant being returned to India, there is a real risk that the applicant will continue to face the type of behaviour he has faced in the past, namely demands for money, accompanied by (hollow) threats and harassment.

9. Ultimately, however the Tribunal found that there was not a real risk that the First Applicant would suffer significant harm and therefore dismissed his claim under the complimentary protection provisions (para.126).

Ground 1

1. The First Applicant’s first ground is expressed as follows:

   1. The Refugee Review Tribunal denied the applicant procedural fairness by reaching adverse conclusions that certain aspects of his claims were implausible, being conclusions that were not obviously open on the known material, without giving the Applicant the opportunity to be heard in respect of those matters.

2. Unfortunately the First Applicant did not file an outline of argument. At the hearing he identified that he expressly disputed the findings of the Tribunal at paragraph 97 where the Tribunal said:

   97. The Tribunal does not accept the applicant’s claim that he was present at the store when it was ransacked or that he was injured. As the Tribunal pointed out to the applicant at the second hearing, in his written claims he wrote:

   The members of the BJP party came to my business and ransacked my shop, when I tried to stop them I was dashed to the ground and kicked and blood was gushing from my mouth. My two workers were also kicked to the ground. They warned us not to report the matter to the police

   whereas at the first hearing his evidence was that he was not present at the store, and subsequently heard about the attack from his employees. At the second hearing he said his hand was cut by broken glass when he was fleeing the store. When, at the second hearing, the Tribunal put to the applicant the inconsistencies in his evidence and that it preferred his oral evidence at the first hearing, he did not protest.

3. The First Applicant was unable to articulate any basis for his arguments in this regard other than the fact that he disagreed strongly with the findings of fact of the Tribunal. It appears to me that the findings of the Tribunal in this regard were open to it and that the Applicant cannot succeed with judicial review proceedings. The findings were based upon inconsistencies in the First Applicant’s evidence before the Tribunal.

4. To the extent that it is suggested that the Applicant was not given an opportunity to be heard it is apparent from the long history of the difficulties that the Tribunal encounters in arranging hearings that the Tribunal went to great lengths to ensure that the Applicant was afforded the proper opportunity to be heard. There is no evidence to suggest that the Applicant was not given a proper opportunity during the course of the two hearings to express his views and give his evidence.

5. In the circumstances I find that the Applicants cannot succeed on this ground.

Ground 2

1. The second ground is set out in the Application in the following terms:

   2. The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the requirements of the Migration Act.

2. No error of law is referred to in the Tribunal’s decision. The Tribunal has spent some time setting out the relevant statutory provisions and the relevant principles that apply. The Tribunal were not persuaded that the Applicant had satisfied the test, as was open to them on the material before them.

Ground 3

1. The third ground that the First Applicant set out in his Application was as follows:

   3. The Tribunal’s decision was unjust and was made without taking into account the full gravity of applicant circumstances and the consequence of the claim.

2. The Applicant was not able to point to any circumstances or facts that were not taken into account by the Tribunal. It is clear from reading the decision that the Tribunal considered the facts and circumstances raised by the Applicant and understood, and carefully analysed the gravity of the claims and concerns that the Applicant referred to. There was no merit to this ground.

Conclusion

1. In the circumstances the Applicants have not established a ground for review and the Application must therefore be dismissed.  

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Date:  29 January 2013