MZZXJ v Minister for Immigration

[2014] FCCA 1768

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZXJ & ANOR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1768

Catchwords:
MIGRATION – Refugee Review Tribunal – applicants seeking merits review – application dismissed.

First Applicant: MZZXJ

Second Applicant: MZZXK

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: MLG 2234 of 2013

Judgment of: Judge Riley

Hearing date: 10 July 2014

Date of last submission: 10 July 2014

Delivered at: Melbourne

Delivered on: 10 July 2014

REPRESENTATION

Counsel for the First Applicant: The first applicant appeared in person

Solicitors for the First Applicant: The first applicant was not represented

Counsel for the Second Applicant: No appearance

Solicitors for the Second Applicant: No appearance

Solicitor Advocate for the First Respondent: Jonathon Hutton

Solicitors for the First Respondent: Australian Government Solicitor

Counsel for the Second Respondent: No appearance

Solicitors for the Second Respondent: Australian Government Solicitor

ORDERS

1. The application filed on 16 December 2013 be dismissed.

2. The applicants pay the first respondent’s costs fixed in the sum of $3,250.

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
MELBOURNE

MLG 2234 of 2013

MZZXJ

First Applicant

MZZXK

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal.  The first applicant is a citizen of India.  The second applicant is his wife.  She is also a citizen of India.  The first applicant appeared before the court today without legal representation but with the assistance of an interpreter.  The second applicant did not appear before the court today.  The first applicant said that she is unwell and pregnant. 

2. The first applicant claimed that:

   a)he was a middle-class person from Gujarat in India; 

   b)he and his wife are Hindus; 

   c)in 2012, he was travelling to his home when he saw some people hitting two men; 

   d)he attempted to intervene and protect the people who were being hit; 

   e)he was told that the people who were being hit were from a lower caste; 

   f)he was told that their farm animals had escaped from their property and damaged the property of the people who were hitting the men; 

   g)the people who were hitting the lower caste men had demanded money from them to cover the damage, but the lower caste people did not have any money to pay compensation; 

   h)the first applicant called the police; 

   i)when they arrived, the police also started hitting the lower caste people and arrested them; 

   j)the first applicant and an organisation called Dalit Seva Samaj started a protest to get the lower caste people released; 

   k)the people who had done the hitting had strong political and mafia links and were of a high class; 

   l)they searched for the first applicant; 

   m)they demanded money from the first applicant because of the damage to their farm; 

   n)the first applicant refused to pay them; 

   o)the higher caste people then threatened the first applicant; 

   p)the first applicant complained to the police, but the police demanded money and refused to accept the complaint; 

   q)after two days, the higher caste people found the first applicant and hit him very hard and abused him in front of his family and neighbours; 

   r)the first applicant offered them money, but they refused it and told him to leave the state, and even the country, if he wanted to live; 

   s)the first applicant approached political leaders and local authorities for help, but no one helped him; 

   t)his business stopped later in 2012; 

   u)he now has a very large debt; and 

   v)the money lenders and others will kill the first applicant and his wife. 

3. The first and second applicants left India in late September 2012 and arrived in Australia on tourist visas valid for two months.  They applied for protection visas on 18 December 2012. 

4. The Tribunal accepted that the first applicant had intervened in a physical dispute between some higher caste men and two lower caste men.  The Tribunal accepted that the first applicant rang the police, who did not arrest the offenders but arrested the two lower caste men.  The Tribunal accepted that the first applicant went to the DSS organisation, and that over 100 people protested outside the police station.  The Tribunal accepted that the two lower caste people were released after two or three hours.

5. However, the Tribunal did not accept that the first applicant was targeted or mistreated by the higher caste men.  The Tribunal did not accept that either applicant was of any adverse interest to the higher caste men.  The Tribunal gave three reasons for forming these views.  The Tribunal considered that the first applicant had not provided a credible or plausible explanation of why the higher caste men would target him.  The Tribunal considered that the first applicant had given vague evidence about who the higher caste men were.  The Tribunal considered that the first applicant would have been able to name the higher caste men, as he claimed to have tried to report them to the police on two occasions.  The first applicant had given significantly inconsistent evidence about fundamental matters.  In view of those considerations, the Tribunal did not accept that the applicants were of any adverse interest to the higher caste men.  The Tribunal did not accept that the higher caste men visited the first applicant, threatened the first applicant, or assaulted the first applicant.

6. The Tribunal did not accept that the first applicant’s business was adversely affected because of anything to do with the higher caste men.  The Tribunal did not accept that the first applicant complained about the men or that the police refused to assist the first applicant.

7. The Tribunal did not consider that the first applicant faced a real chance of persecution from the higher caste men and did not consider that the first applicant faced a real risk of significant harm from these men. 

8. In relation to the first applicant’s claims about having a very large debt, the Tribunal accepted that the first applicant did owe a substantial amount of money to four people. However, the Tribunal did not consider that the applicants were at any risk from the money lenders.  The Tribunal accepted that the money lenders had inquired about the first applicant’s whereabouts. However, the Tribunal noted that there was no claim that the money lenders had in any way harmed or threatened the applicants. In these circumstances, the Tribunal considered that it was merely speculative that the applicants would be or might be in any way harmed by the money lenders. 

9. The Tribunal formed the view that the applicants did not face any risk of persecution or significant harm if they were to return to India.  Consequently, the Tribunal affirmed the decision not to grant the applicants protection visas. 

10. The application to this court lists the grounds of the application as follows:

    1.I applied for the protection visa to department of immigration which was refused.

    2.Then I apply to RRT for review of that decision.

    3.I think RRT Tribunal and department of immigration did not look [at] my situation.

11. Before the court today, the first applicant repeated that the Tribunal did not look at his situation.  He said that the Tribunal did not pay any attention to what he said and did not accept what he said.  He said that if any proof was needed or any documents were needed, he could provide them.  It appears that the first applicant is simply disagreeing with the findings made by the Tribunal.  It appears that he is impermissibly seeking merits review.  The nature of jurisdictional error was explained as far as possible to the first applicant. However, he was not able to identify any jurisdictional error in the Tribunal’s reasons for decision.

12. Contrary to the first applicant’s claims, the Tribunal did look at his situation.  It considered his claims in some detail and, for reasons which it gave, it rejected those claims.  The Tribunal’s reasons for rejecting the first applicant’s claims were open to it on the evidence. 

    
    

    I am unable to detect any jurisdictional error in the Tribunal’s reasons for decision. 

13. In relation to the first applicant’s offer to provide further evidence at some future time, the court is not in a position to reconsider the merits of the case, so further evidence would not assist in the present proceedings.  

14. In all the circumstances, the application must be dismissed.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate: 

Date: 7 August 2014