MZZXL v Minister for Immigration

[2014] FCCA 1795

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZXL v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1795

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – no matter of principle – application dismissed.

Applicant: MZZXL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 2235 of 2013

Judgment of: Judge Riethmuller

Hearing date: 10 July 2014

Date of Last Submission: 10 July 2014

Delivered at: Melbourne

Delivered on: 10 July 2014

REPRESENTATION

Counsel for the Applicant: In Person

Counsel for the Respondent: Mr J.M. Forsaith

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

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

2. The Applicant pay the First Respondent’s costs fixed in the sum of $4600.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLG 2235 of 2013

MZZXL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant in this case seeks judicial review of a decision of the Refugee Review Tribunal made on 27 November 2013, where the tribunal affirmed a decision of the delegate to refuse the applicant a protection visa. 

2. The applicant comes from India.  He came to Australia in 2012 on a visitor visa.  On 18 December 2012, he lodged his application for a protection visa.  The applicant claimed to fear persecution on the basis of actual or imputed political opinion. 

3. The tribunal sets out a summary of his claims at paragraphs 21 and 22 of their decision which say:

   21. He also makes the following claims:

   a. He has experienced harm several times.

   b. He will lose his life if he goes back, and will suffer harm from BJP members and the police.

   c. The authorities are corrupt.

   22. In an attached statement, he makes the following claims:

   a. He was educated up to a 'second bcom' and then joined his family business. He also had farming land, and grew produce on it as his other business.

   b. He follows the Congress Party, and does not prefer the BJP, which has a major hold in the upper castes, and discriminates against the minorities and lower castes.

   c. His business is in ready-made clothes, so all types of people come to his place of business. His business was going well.

   d. Congress supports the lower castes and minorities and he believes 1n their philosophy.

   e. Once upon a time, a group of people came to his shop and he sold them clothes for which they refused to pay. They told him they were influential people and no one should demand money of them. A few of them were drunk and abused him with bad words, hurt him physically, and left.

   f. After some time, he had forgotten that incident. However, the 'people' came again and he refused to sell them clothes. It was a busy trading pe1iod and other customers were present. He told them to leave. They felt insulted and left with a warning that they would see him in the future.

   g. He \vent to the police, wJ10 said it was a. very small incident and they had no time to investigate such a small incident between shop-owner and customer. They did however take down his complaint, but just for the sake of having it written down.

   h. He came to know that the people who visited his shop were from the BJP. The BJP is currently in government and that has prompted such people to behave 'very badly' with common people. They were also linked to the local mafia and thugs, which is why his complaint to police was not taken seriously.

   i. He met ·with a Congress activist who agreed to help him. He started participating in the party's work and meetings and received support from Congress people. Unfortunately, Congress lost in the local district elections.

   j. 'These people' came to know of his links to Congress and they became 'enemies'. They were attacking him and abusing him, and planned to close his business and break him financially. They also harassed his customers and asked another person to 'break' his business. They mentally harassed him.

   k. He did not have a proper income, or any other way to survive. On the advice of friend, he left the coui1tiy to save his life.

4. The tribunal refused the applicant’s application on the basis that they did not believe that he was a credible witness and they did not believe his claims.  The tribunal explains this in paragraphs 70 and 75-77, which are as follows:

   70. As put to him at hearing, I found the applicant's evidence consistently vague and lacking in detail throughout the having. He was unable to expand upon the written claim he relies upon in a meaningful way. His description of the two claimed visits to his shop remained superficial, as was the native of his claim as to how he came to be involved with the Congress party. He avoided questions regarding the state election he referred to in 2012 and continually referred to another set of elections in 2013. I spent much of the hearing attempting to clarify statements or claims he had made at hearing and found his responses were often not relevant to the questions or topics being put to him. By the end of the hearing, l had not gained a nuanced or detailed appreciation of his claim, or the claimed events that comprise his claim.

   ...

   75. Considering all of these factors, I find that the applicant is not a credible witness generally, and has not presented a, credible or genuine set of claims to have faced or to face a prospect of harm in India in this application.· I reject all of his claims in this regard. Specifically, I find as put to him that he has no interest in politics, was never involved in politics, nor perceived to be so. I find he will not become involved in politics other than as an ordinary voter and faces no prospect ·of harm on this basis. I reject his claims to have been or become of adverse interest to persons associated with the BJP, or anyone else. I reject that his father's house was visited or that he was, is or will be sought by anyone meaning him harm. I reject that his business came under pressure for reasons connected with politics, or that he was harassed or threatened for this reason. To the extent that he claims his father or family are of adverse interest for reasons of politics, I reject that. I reject that his father faces any prospect of harm as a in member of Congress, or that the applicant faces any prospect of harm on this basis. I reject that he had or has no way to survive in India. I reject his vague claimed raised at hearing that he gets into fights wherever he goes in India. I reject that the police have a motive or reason to harm him, or that he faces a prospect of harm from authorities.

   76. I therefore find that there is no real chance or risk that the, applicant will be ha11nedin India. His fear of hmm is nofwell-foui1ded.

   77. I have considered if the applicant satisfies the criterion in s.36(2)(aa). Having considered the applicant's claims, individually and cumulatively, and having rejected the applicant's claims as being neither credible nor reliable for the reasons above, I find that there are no substantial grounds for believing that as a necessary and foreseeable consequence of his removal from Australia to India there is a real risk that the applicant will suffer significant harm in India.

5. The applicant’s application relies upon the following grounds:

   (1)I applied for the protection visa to Department of Immigration which was refused.

   (2)    Then I applied to RRT for review of that decision.

   (3)I think RRT tribunal and Department of Immigration did not look my situation.

   The applicant did not file any other documents clarifying what his complaints were about the tribunal.

6. The tribunal explains in some detail why they did not believe the applicant, for example, he changed his version about whether or not he even had a brother.  The tribunal said:

   71. A positive assessment of the reliability of the applicant's evidence is not assisted when the 424A information (see above) is considered. He did not wish to respond in any way to the inform action that he had a brother with significant financial means, which contradicted a claim he reaffirmed at hearing, that he was an only child. I put to him that the question of whether he had siblings was a simple one, which would usually have a simple answer. I explained to him why the information tended to impugn his credibility in light of the fact that he had reaffirmed his claim that he had no siblings.

   72. The 424A information and the applicant's choice not to respond to it, strongly suggests that the applicant is unable to be forthcoming or transparent about simple and basic claims that be has made.

   73. Both the deficiencies in the applicant' s own evidence, and the 424A infom1ation and the applicant's own response to it are sufficient to call into question the reliability of his evidence and claims generally. Together, they serve to fortify the doubts that I have that he has presented a genuine and truthful claim in this application.

   74. There are additional reasons to doubt the applicant's claims. His description of how he might have been observed at the Congress offices explaining why the claimed group of persons from the BJP knew he was associated with Congress is far-fetched. Country information, while confirming that violence occurs between supporters of Congress and the BJP, does not support the proposition that an ordinary supporter or member of the Congress party would be targeted or be of enduring interest to persons connected to the BJP, or vica versa.

7. On the basis of the material before the tribunal, it was open to the tribunal not to believe the applicant. 

8. At the hearing before me, the applicant raised five matters.  The first was a complaint that he did not want to have to return to India because of fighting in the Indian congress.  This is really a complaint about the merits of the decision and not an argument that the decision-maker has made an error of law.  This is not a basis upon which someone can seek judicial review.

9. The next four points were issues that the applicant said the tribunal did not look at or did not look at properly.  These are as follows:

   a)that people came to the shop and took goods;

   b)that people who came to the shop were about to be physically violent to him;

   c)that they made a threat to his father that they would kill him;  and

   d)that the shop had to be closed down.

10. As counsel for the Minister submits, these matters are clearly discussed in a number of paragraphs of the decision.  In this regard, the following paragraphs discuss these things:

    37. He said his father ran a clothes shop in [A]; while his mother was a housewife. He said the shop had one employee. He said he too worked in the shop from time to time he stopped his studies. He said he had worked there for three years. He said his father had rented the shop and then closed the shop when the applicant came here because his father’s eyesight was no good. He said his father had cataracts which had been removed and he could see at close range only. I asked if his father had closed the shop for any other reason. He said his father also closed the shop because of the ‘fight’.

    …

    40. He confirmed he came to Australia on 24 September. I asked him why he came. He said his life was threatened. He said he worked with his father in his shop. Four or five people came to the shop for clothes. He asked them for payment, and they told him they were members of the BJP, and asked him if he knew that, and then they left without paying .. He said they returned around 15 days later and asked for more clothes. He refused to supply clothes to them and they said 'we will see you'. He said there were elections, and those people came to know that he was associated with the Congress· party. He said those people told his father that he should stop his Congress activities, or he will be threatened.

    43. I asked him when it was that he had problems with BJP people at his shop - referring to the incidents he had described. He said it was July 2012 or around then. I put to him that he was not sure when he became involved with Congress, whether it was 2011 or 2012 . He said it might have been December 2011. I asked when was the first time he ever saw the ' BJP people' at his shop . He said it was when they came to buy clothes, which was in 2012 in August, July or September. I asked him how many occasions he had seen them at the shop. He said twice.

    44. I asked him to describe what happened the first time. He said they bought clothes but refused to pay and declared they were from the BJP. He said after 15 days they returned and asked for more clothes. He said other customers were present, and he refused to supply clothes. Other customers urged him to report the matter to police. He said the police did not take official action when he made a complaint.

    …

    46. After the break, the applicant confirmed he had not seen the BJP people apart from on the two occasions he mentioned at the shop. However, he said that after the second incident, the BJP people went to his father's house. I asked how they would have found his father's house. He said they were 'big' people and his house address is written on his shop. In response to questioning, he said he was out with a friend and when he came home his father told him that the people had told him to ask the applicant to stop talking about the Congress party. I asked how many times they came to his father's house. He said just once. He confirmed they came 4-5 days after the second incident. He said he fought with them in July, so they must have visited his father in July 2012. I pointed out that I understood the meaning of his reference to 'fight' as a reference to the disagreements he had with them at the shop. He said some of them were drunk and he was pushed before they left. I asked what month he flew to Australia. He said it was 24 September 2012. I asked when the shop was closed. He said it was closed around 29 July 2012. I asked what he did after the shop was closed and before coming to Australia. I pointed out that period of time was almost two months and asked if he was living with his parents. He said he was. I asked if he had any problems in that time. He said he had no problems. I asked him to confirm that. He confirmed he had no problems and the BJP people did not come back

11. I note that at the hearing before me the applicant appeared to confuse the names of the congress party and BJP.  As it is not for me to decide whether or not to believe the applicant, I do not draw any inferences from his confusion about the names of the political parties, even though it is a case where he says one of those parties is persecuting him. 

12. In the circumstances, I must refuse his application.

[Argument ensued]

1. In this case, the Minister seeks costs in the sum of $4,600.  In cases of this type, the successful party’s costs are usually paid by the unsuccessful party.  There is nothing about this case to indicate that there should be a departure from the ordinary rule.  The fact that a party does not have sufficient money to pay costs is not a basis for refusing to order costs.

2. The amount sought by the Minister is $4,600.  The court scale provides for an amount of $6,646 as being the appropriate amount in ordinary cases.  The lawyer for the Minister says that the Minister has not spent that much on costs, but only $4,600.  Quite properly, the lawyers for the Minister only claim the actual costs of $4,600.  In the circumstances, I find this is a reasonable fee and I order the applicant to pay the Minister’s costs fixed at $4,600.

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

Associate: 

Date:  12 August 2014