FEDERAL COURT OF AUSTRALIA

MZWAS v Minister for Immigration and Multicultural

and Indigenous Affairs [2005] FCA 924

MZWAS AND MZWAU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

VID 1268 OF 2004

NORTH J

21 JUNE 2005

MELBOURNE

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1          The appeal is dismissed.

2          There be no order as to the costs of the appeal.

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     Before the Court is an appeal from a decision of the Federal Magistrates Court delivered on 22 September 2004.  The Federal Magistrate dismissed an application for review of a decision of the Refugee Review Tribunal (the Tribunal).  The decision of the Tribunal was made on 29 October 2003.  The Tribunal affirmed the decision of the delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, not to grant protection visas to the appellants (who are husband and wife) and their two children.  The appeal was heard by a single judge of the Court pursuant to a determination made by the Chief Justice under s 25(1A) of the Federal Court of Australia Act 1976 (Cth) on 18 April 2005. 

2                     I will refer to the husband as the appellant because the claims of his wife and two children depend upon his establishment of error by the Federal Magistrate. 

3                     The appellant and his family are citizens of India who arrived in Australia on 7 November 2002.  On 4 December 2002 they lodged applications for protection visas.  On 30 January 2003 a delegate of the respondent refused to grant those visas. 

4                     The original claims made by the appellant are contained in the handwritten visa application form.  The appellant claimed that he conducted a garment business in Mumbai and witnessed the killing of two people in front of his shop.  He claimed that only he and his staff were still working at the time of the murder.  He observed that the murder was committed by some people who were linked with a local Shiv-Sena Hindu leader.  He claimed that he and his staff were arrested by the police and taken to the police station for interrogation.  A staff member gave the name of one of the persons involved in the incident, and then the police applied pressure to the appellant to give a statement against the gangsters involved in the murder.  Thereafter, the appellant claimed that he was subjected to pressure from both the gangsters who had committed the murder and from the police.  The gangsters sought to dissuade the appellant from testifying against them and the police applied pressure in order to pursue their prosecution against the criminals.  The claims as originally stated referred to the gangsters threatening the appellant, stealing his car, throwing stones at the shop and damaging his property.  The police threatened that if he did not reveal the perpetrators of the crime, it would be assumed that he was involved with the crime and would be charged himself. 

5                     In order to extricate himself from this situation, the appellant claims that he saw some influential people about the problem and asked them to help him out.  He made contact with the deputy superintendent of police in Mumbai, and ultimately he said that he could not assist.  The deputy superintendent of police, so the appellant claimed, was concerned not to involve himself in the matter because it might put his future promotion in doubt.  The appellant claimed that the deputy superintendent of police then advised him to leave the country as soon as possible. 

6                     The appellant claimed that his life was in danger because if he returned to India the local police would charge him falsely with murder and he could suffer severe punishment, possibly death or life imprisonment.  He said that if he returned to India and tried to start a new business, the gangsters would find him and his life would be in danger.  His claim included the following summary:

The reason that I fear the worst in India is simply because, if gangsters threaten you, the police has the power to save, but in my case, due to my bad luck, this case has become a match for prestige for both sides, neither wants to compromise in this case, and let go the matter, as persons who got killed are finished anyway, but the police wants to dominate the area on this pretext that the area has gone out of control and they need to pick up the boss.  And the gangsters want to see who testifies against them.  And the authorities that are - that is, the courts and the judges, they work according to the briefings they get from the police as to how much money they can make out of the person up to his last penny, and failure to meet their sum results in long imprisonment or death and confiscation of the properties.

7                     It is noteworthy that the delegate who rejected the application originally gave consideration to the fact that the appellant is Muslim.  The delegate said at [4.2.1]:

I accept that the applicant is a national of India and a Muslim.  I also accept that India has a long history of violence between the Hindu majority that makes up 82.4 percent of the population and a Muslim minority, which composes 12.7 percent.  However, there is no information indicating that Muslims in India as a whole are discriminated against in any systematic organised or meaningful way.

According to country information (CX 44717 of 20 September 2000), Muslims constitute India’s largest minority.  The Indian authorities do not restrict the religious activities of Muslims.  Muslims have freedom of religious practice and freedom to organise their services according to their codes, religious teachings and customs.  Muslims do not benefit from special reservations in education and employment.  They are reportedly under-represented in the civil service, the military and institutions of higher education.

The evidence provided by the applicant indicated that he had operated his own business for several years.  He clearly did not face serious discrimination in areas such as the ability to earn a livelihood.  He made no claim to have ever been prevented from practising his religion or that he thought this would happen in the future.  There is then no ground for finding that he would suffer persecution for reasons of his religion.

8                     It is noteworthy that prior to the reference by the delegate of the impact of the Muslim religion of the appellant, the appellant himself did not raise the question of religion in his claims.  The only reference to religion was in the space on the application form which inquires after the applicant’s religion.

9                     The appellant sought review before the Tribunal.  The appellant produced the same handwritten claims to the Tribunal as he had relied upon in his original application.  The transcript of the proceedings before the Tribunal was not before the Federal Magistrate and is not before this Court.

10                  The Tribunal set out the claims and evidence relied upon by the appellant, which included a magazine article from Time magazine of 11 August 2003 that dealt with the discrimination in India against its minority Muslim community.  The circumstances in which the article was produced is not explained in the reasons of the Tribunal. 

11                  The Tribunal’s findings and reasons are shortly expressed at 5–6 as follows:

The essence of his claims is that he was persecuted by a local Shiv-Sena party [sic] who pressured him to make certain statements to the police about an incident outside his shop.  The Tribunal notes that the party affiliation of this person is not the crucial issue.  It is the fact that the Shiv-Sena party member has a local power base and not much happens without this man’s approval.  The applicant admitted freely that he has been paying regular amounts of money to be left alone to run his business and that this is a normal occurrence and an accepted way of getting on in India.  The applicant had a lucrative and well establish [sic] clothing business and also supplied garments for the cinema industry which is a flourishing industry in Mumbai.  The Tribunal accepts that the manner of doing business involves payola for certain people, at least in this area of Mumbai; it accepts that the applicant witnessed a murder and it accepts that some adverse consequences have resulted from this for the applicant as claimed which may have led to his closing it down.  The Tribunal is not satisfied that the harm suffered by the applicant which consisted of pressure being put on him to make certain statements and of frequent visits to the police station or the court about the murders can be said to be of such gravity as to constitute persecution.  The Tribunal is also not satisfied that the claims of harassment by the police and the gangsters in his shop are credible, especially since the applicant did not pursue them at the hearing.  Furthermore, the nexus to the Convention has been claimed by the applicant to be that of his Muslim religion.  Despite the fact that there has been a recent increase in Hindu-Muslim animosity in India as the applicant claims, the Tribunal finds that the applicant has exaggerated this aspect in order to bolster his claims for refugee status.  The applicant reports cordial and mutually beneficial relations with the Hindu Shiv-Sena ‘boss’ for a number of years and the applicant does not appear to have caused this person any particular difficulties, rather he has done what has been asked of him.  The Tribunal finds that because he has participated in the court case of a period of time [sic], there is no reason for the gangsters to seek him on return or is there any reason for the police to trump up charges against him as claimed.

In summary, the Tribunal finds that the harm suffered by the applicant is not of the type and severity to constitute persecution and has not been inflicted upon the applicant for a Convention reason.  The Tribunal thus finds that there is not a real chance that the applicant would be persecuted for a Convention reason, now or in the reasonably foreseeable future should he return to India.

12                  It can be seen that the Tribunal relied upon two reasons to reject the appellant’s claims.  The Tribunal first found that the persecution which had been established was the pressure placed upon him by the police to make statements against the gangsters.  The Tribunal also found that the gangsters had visited some adverse consequences on the appellant which may have lead to the appellant closing down his business, but in the end the Tribunal rejected as a matter of fact the alleged serious harassment by the police and gangsters in his shop on the basis that the appellant did not pursue these allegations at the hearing.  The facts which the Tribunal found did not amount to conduct of sufficient gravity to constitute persecution in the view of the Tribunal. 

13                  The second basis upon which the Tribunal rejected the claim was that the events did not have as their basis any Refugees Convention reason.  The Tribunal rejected the claim that the appellant suffered as a result of any Hindu-Muslim animosity, and this was the only nexus upon which the appellant relied. 

14                  The appellant then appealed to the Federal Magistrates Court.  In an affidavit filed in support of that appeal, the appellant essentially adopted the statement of his claims submitted with his visa application and which had also been produced to the Tribunal.  Otherwise, he simply asserted that the decision of the Tribunal was unfavourable and unacceptable.

15                  The Federal Magistrate gave extempore reasons for his decision.  He dealt first with the Tribunal’s finding that the events complained about did not amount to persecution.  The appellant apparently argued before the Federal Magistrate that, on the facts established, the case came within the provisions of s 91R of the Migration Act 1958 (Cth) (the Act), which relevantly provides:

(1)       For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:

(a)       that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and

(b)       the persecution involves serious harm to the person; and

(c)        the persecution involves systematic and discriminatory conduct.

(2)               Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)               a threat to the person’s life or liberty;

(b)               significant physical harassment of the person;

(c)                significant physical ill-treatment of the person;

(d)               significant economic hardship that threatens the person’s capacity to subsist;

(e)                denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)                 denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

16                  The Federal Magistrate held that the finding relating to persecution was a finding of fact which, even if incorrect, did not amount to jurisdictional error.  The Federal Magistrate observed that the Tribunal decision caused him some disquiet, given that the Tribunal had found that there were adverse consequences arising from harassment by the police and/or the gangsters, as a result of which the appellant may have had to close down his business.  The Federal Magistrate commented that no consideration was given to the significant economic consequences as potentially falling within s 91R of the Act. 

17                  In the end, the Federal Magistrate answered his own observations by finding that economic consequences were not put as the substance of the case before the Tribunal.  The Federal Magistrate proceeded in the following terms at [13]–[14]:

I should also record that during the course of argument I explored the other potential difficulty that the applicant’s case would face in any event, which is that he does not appear to claim to be discriminated against because he is Muslim, but rather because he was the witness of a gangland-style killing.  On such facts it is difficult to see that he falls within the requirements of the Act in any event, as it is difficult to categorise the witnesses of a gangland-style murder as particular social group nor the reason for any adverse treatment as discriminate for a convention reason.  These matters were not specifically discussed by the RRT but would ultimately result in the applicant failing before the RRT in any event.  It is therefore not appropriate to exercise the discretion to quash the decision.

Finally, I also note that the applicant would also appear to be bound to fail in his application on the basis that the facts provide no basis for concluding that relocation within India was not reasonable.

18                  The appellant filed a document which stands as a notice of appeal from the decision of the Federal Magistrate.  It described the grounds of the application at length as follows:

In continuation of my application I wish to submit that I am Indian National Muslim by religion.  As everyone knows that India has a long history of violence between the Hindu majority, that makes up 82.4 percent of the population and a Muslim minority, which composes 12.7 percent.  However the Muslims in India are discriminated against systematic organized in many ways.

Muslims constitute India’s largest minority.  The Indian authorities do not restrict the religion activities of Muslims.  Muslim has freedom of religious practices and freedom to organize their services according to codes this is on the book of government, But there is discrimination between Hindus and Muslims this can be seen by the Babri Mosque violence.  Gujarat violence etc.

In India Muslim are a despised minority, disliked by a large section of the majority.  India’s Muslims are also far more likely than Hindus to be victims of violent attacks.  In all the communal riots since Independence, official police records reveal that three quarters of the lives lost and properties destroyed were Muslims, a figure that claimed to 85% during 2002 riots in Gujarat.

In my case seems similar that I was a businessman doing business happily and living with my family without any problems till mid of 2001.  Just in October 2001 the accident occurs in front of my shop and the problem started since then I was not been able to take peaceful breath in India till I departed from India.  It was very difficult time which I never forget in my life time.  Just because I was Muslim and all the Police Officials and other local shiv Sena people are Hindus and I tried a lot to get justice from Indian Authorities but all in vain.

I have a wife and two minor sons with me and we all were living with intense fear that any thing can be happen at any movement.  This was the opportunity that we get from God to leave the Country on the right time otherwise till now I and my family declared Dead person India.  The Hindus are heartless towards Muslims and this can be seen from the communal riots in India every time.

Even the definitions of Refugee define:

Owing to well founded fear of being persecuted for reasons of race, religion, nationality, membership of particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

The reason that I fear the worst in India is simply because if gangster’s threaten you the police has the power to save, But in my case due to my bad luck this case has become a match of prestige for both sides, neither want to compromise in this case, and let go the matter, as persons who got killed are finished anyway, but the police wants to dominate the one on this pretext that the area has gone out of control and they need to pick up the boss.  And the gangster’s want to see who testifies against them and the authorities that is courts and the judges they work according to the briefings they get from the police in their charge sheets.  If I were Hindu I do not have to face all this problems but this is only that I am Muslim by religion and if I return back to India result in long term imprisonment or death penalty by court of law or by the gangsters cannot save my life from either side.

19                  This document put the appellant’s Muslim religion in the very forefront of his case, and asserts that it was only because of his Muslim religion that he could not extricate himself from the difficult position of threats from both the gangsters and the police.  For instance, it says:

If I were Hindu I do not have to face all this problems, but this is only that I am Muslim by religion …

20                  The appellant also filed an outline of his submissions in which he elaborated the argument that his problems all derive from his Muslim religion.  The appellant in his written submissions, although probably not in the documents standing as a notice of appeal, argued that the Tribunal was wrong in determining that the harm which had been done to him was not serious enough to fall within s 91R. 

21                  The appellant addressed a number of arguments to the Court orally on the hearing of the appeal.  He contended that by accepting that he may have had to close his business down as a result of the actions of the police or the gangsters, his case fell within the description of serious harm.  He also explained that his car had been taken away for about four hours by the gangsters, a fact which he interpreted as a warning to him to show that such things can happen to him if he does not comply with their wishes.

22                  The appellant also argued that the Federal Magistrate was wrong in concluding that the appellant could relocate within India.  The appellant apparently accepted that he did not pursue at the hearing the allegations of persecution by gangsters doing damage within his shop, but he sought to explain his position.  He said that he had been told by the Tribunal that he need not elaborate on the material which he had already filed.  He said he was not legally represented and was being very precise about the matters which he raised in person before the Tribunal.

23                  Then the appellant explained that his claim that his troubles arose from his Muslim religion was intended to be a claim that his difficulties in finding a way out of the problem of threats from the police and gangsters was based on his Muslim religion, not the fact that he found himself in that predicament in the first place.  He explained that he had raised the question of his Muslim religion before the Tribunal and had referred to items in the Time article in which witnesses in court cases had been warned that their Muslim religion would count against them. 

24                  There is a clear problem with the reasons of the Tribunal.  They are very short and they do not explain comprehensively the process of reasoning undertaken by the Tribunal.  The appellant is an articulate man, well capable of understanding the decision-maker’s response to his case.  It is unfortunate that the Tribunal in this case did not explain to him in greater detail the way in which it arrived at its decision.  Nonetheless, brevity or lack of full explanation is not a ground upon which this Court can find that the Tribunal has committed jurisdictional error. 

25                  The essential reasoning, although in skeletal form, is clear enough.  The Tribunal found, after assessing the evidence, that the harassment visited upon the appellant was not of a degree sufficient to constitute persecution.  That conclusion is a value judgment based upon a qualitative assessment of the evidence before the Tribunal.  I am not able to say that in coming to that conclusion the Tribunal made a jurisdictional error.

26                  Perhaps more importantly, the same criticism of brevity can be made of the Tribunal’s treatment of the question of the nexus of the claims to the Refugees Convention.  Whilst the Tribunal concluded that the appellant exaggerated the religious element, the decision is so lacking in detail that the reader is left with nothing more than thisconclusion.  The only factual matter referred to by the Tribunal is the pre-existing relationship between the Shiv-Sena boss and the appellant prior to the events in question.  That alone is not a particular satisfying explanation for the conclusion. 

27                  Nonetheless, I am again bound to say that the decision of the Tribunal does not reveal jurisdictional error in this regard.  The Tribunal did address the claimed religious nexus.  Given my earlier remarks about the complete absence of any reference to religion in the original claims, the conclusion is not surprising.  Nonetheless, acceptable practice suggests that the appellant be given some greater insight into the process by which the Tribunal arrived at its conclusion.

28                  It remains to say something about the decision of the Federal Magistrate.  Again it is unfortunate, given the level of understanding of this appellant, that the Federal Magistrate did not elaborate more fully on the approach he took to the case.  It is unfortunate that a number of potential speculative errors were identified by the Federal Magistrate when there seemed to be no particular point in doing so.  The clearest example appears at [14], where the Federal Magistrate proffers the view that the appellant would be bound to fail in his application because the facts provide no basis for concluding that relocation within India was not reasonable.

29                  There was no mandate for the Federal Magistrate to venture into this area.  The Tribunal did not consider the question of relocation.  There was no finding of fact on the issue.  The matter was simply not under consideration before the Tribunal.  The role of the Federal Magistrate was to conduct a judicial review.  Absent any fact findings on this issue, the Federal Magistrate had no basis upon which to proffer a view about whether relocation would have been reasonable. 

30                  The problem with the Federal Magistrate venturing into this area without any justification is that it gave rise to a perception by the appellant of a need for response by way of appeal.  The appellant having seen the finding wished to contend against it.  It is not a finding which should have been made.  It was outside the purview of a judicial review, and there was no factual basis upon which the Federal Magistrate could have come to the conclusion which he did.

31                  For these reasons, the appeal must be dismissed.

32                  The respondent sought an order for costs of the appeal in her favour.  Ordinarily, the costs of an appeal in these circumstances would follow the event.  I doubt that such a solution would be fair in the circumstances of this case.  The brevity and lack of fulsome explanation of the basis upon which the Tribunal came to its conclusion was in part responsible for the subsequent proceedings.  The way in which the Federal Magistrate dealt with the case did not assist in bringing the proceedings to finality. 

33                  I have some real sympathy with the appellant’s position.  As previously observed, he is articulate, intelligent and keenly aware of the arguments both in favour and against his claims.  He deserved better decision‑making than he received.  His pursuit of the appeal was contributed to by the poor standard of decision‑making.  In those circumstances, I make no order as to the costs of the appeal.

Associate:

Dated:              7 July 2005