FEDERAL COURT OF AUSTRALIA

MZWPA v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1420

MIGRATION — appeal — findings of fact —whether jurisdictional error

Sarrazola v Minister for Immigration and Multicultural Affairs [1999] FCA 101 – cited

Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) (2001) 107 FCR 184 – cited

Ram v Minister for Immigration and Multicultural and Indigenous Affairs (1995) 57 FCR 565 – cited

Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 205 ALR 487 – cited

MZWPA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

VID 932 OF 2005

MERKEL J

11 OCTOBER 2005

MELBOURNE

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the respondent’s costs of and incidental to the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     On 7 October 2005, I made orders that the appeal be dismissed and the appellant pay the respondent’s costs of and incidental to the appeal.  At that time, I indicated that my reasons for judgment would be published shortly after the hearing.

2                     The appellant, who is a citizen of India, applied for a protection visa claiming that he is a refugee as defined by Art 1A(2) of the Convention Relating to the Status of Refugees Opened for signature 28 July 1951. 189 UNTS 150 Art 1A(2). (entered into force 22 April 1954) as amended by the Protocol Relating to the Status of Refugees Opened for signature 31 January 1967. 606 UNTS 267. (entered into force 4 October 1967)  (‘the Convention’).  His application was refused by a delegate of the respondent and the refusal was affirmed by the Refugee Review Tribunal (‘the RRT’).  The appellant applied unsuccessfully to the Federal Magistrates’ Court (‘the FMC’) to review the decision of the RRT.  He has now appealed to the Court against the dismissal by the FMC of his application for review.

3                     Before the RRT, the appellant claimed to have a well-founded fear of persecution by reason of his religion.  The RRT rejected aspects of the appellant’s evidence regarding the harm he feared and concluded that the appellant’s religion was not the essential and significant reason for the threats and extortion that he claimed to have experienced (see s 91R of the Migration Act 1958 (Cth)).  In the result, the RRT did not accept the appellant’s claim that he had a well-founded fear of persecution by reason of his religion if he were to return to India.

4                     The FMC rejected the application for review of the RRT’s decision.  The FMC stated:

‘There is no error of law in the tribunal’s decision.  There is not a jurisdictional error.  The tribunal considered all of the applicant’s claims.  It went through the narration of extortion demands and violence that the appellant referred to.  It accepted the essential part of his claim that he was subjected to violence, harassment and demands against himself and his family, such that it forced him to transfer his property.  It did not accept some of his claims in relation to the police and charges.  It gave its reasons for not accepting those claims.  They were matters of fact for the tribunal and no error of law is shown.

The tribunal was careful to set out all possible bases of claim for the applicant.  The primary claim of the applicant was based on his Muslim religion.  That could give rise to a claim for reasons of race, religion, nationality or political opinion.  The tribunal concluded that none of those applied because it found as a matter of fact that the motivation of the extortionists was simply extortion, the acquisition of money or property, not the applicant’s religion or his race, nationality or political opinion.’

5                     In his notice of appeal, the appellant claimed that there was an error of law in the FMC’s decision and that ‘there was a procedural error in the [FMC’s] decision constituting an absence of natural justice which was also a jurisdictional error.’  The only particulars given by the appellant were:

            ‘I disagree with the decision of His Honour that is no reasonable cause of action and I will provide detail particulars when I receive the copy of the decision of Federal Magistrate Phipps dated 25^th July 2005.’

6                     No further particulars were provided by the appellant.  The appellant did not appear at the hearing of this appeal, so I have considered the matter on the basis of his written submissions.  In his written submissions, the appellant claimed that the FMC erred in finding that the persecution he suffered was not by reason of his religion and that business operators in Mumbai were not a particular social group under the Convention.  The submissions sought to re-agitate findings of fact made by the RRT.  The appellant’s written submissions did not advance any proper basis for the Court to find that the FMC or RRT fell into legal or jurisdictional error. 

7                     The RRT’s rejection of the appellant’s claim for refugee status was the result of three critical factual findings by the RRT.  First, that the extortion did not occur by reason of the appellant’s religion.  Secondly, that the appellant was not a member of a social group comprised of persons with property or assets, or that even if the appellant was a member of such a social group, this was not the essential and significant reason for the extortion.  Thirdly, that state protection would not be denied to the appellant for a Convention reason.

8                     The RRT’s first critical finding — that the extortion the appellant suffered resulted from his asset ownership, rather than for a Convention reason — was a finding of fact that was reasonably open to the RRT on the evidence before it.  Indeed, the RRT stated in its reasons for decision that:

‘The applicant agreed that he was not a victim of extortion on account of his religion but rather because he had assets wanted by others.’

            And that:

‘On the applicant’s own evidence, the gangs made extortion demands on businesses irrespective of the religious affiliation of their owners.’

9                     Furthermore, it has been noted that cases of extortion, without more, do not fall within the terms of Article 1A(2) of the Convention (Sarrazola v Minister for Immigration and Multicultural Affairs [1999] FCA 101 at [48], approved on appeal in Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) (2001) 107 FCR 184 at 198 [48]).  Accordingly, the RRT did not fall into jurisdictional error in respect of its finding that the appellant was not persecuted by reason of his religion.

10                  Although it does not appear to have been claimed by the appellant, the RRT also considered whether:

‘business owners, property owners or people with money, all groups to which the applicant could be seen to belong, can compromise a particular social group as the term is applied in Australian refugee law.’

11                  The RRT concluded that they could not.  Further, the RRT stated that even if it was wrong on this point, it did not consider that the appellant’s membership of that group would be the essential and significant reason for the extortion he suffered.  In that regard, the RRT cited the following passage from Ram v Minister for Immigration and Multicultural and Indigenous Affairs (1995) 57 FCR 565 at 569 (per Burchett J, with whom O’Loughlin and Nicholson JJ agreed):

‘Plainly, extortionists are not implementing a policy, they are simply extracting money from a suitable victim.  Their forays are disinterestedly individual.

…

[The appellant] does not fear persecution for reasons of membership of a particular social group, but extortion based on a perception of his personal wealth and aimed at him individually.’

12                  I am not satisfied that the RRT fell into jurisdictional error in making the factual finding that ‘business owners, property owners or people with money’ in Mumbai are not a particular social group or that, even if they were, the appellant was not persecuted by reason of his membership of such a group.

13                  On the issue of state protection, the RRT stated:

‘I have found that the harm experienced by the appellant was not Convention-related as it did not occur for a reason in the Refugees Convention.  The matter of state protection therefore does not arise unless there is evidence that policing and access to justice would be less available to the applicant than to other people because of his race, religion, nationality, membership of a particular social group or his political opinion, that is for one or more of the reasons in the Refugees Convention.  I am aware that the police response to the large-scale communal violence which broke out a decade or so ago was criticised for failing to assist Muslims but I am aware of no such evidence that the police response to the kind of difficulties faced by the applicant would be determined by any of these factors.  I note his claim that the police were with the gangsters and it is of course possible that some police act corruptly but I am aware of no evidence to indicate that all or most police are with the gangsters as the applicant has asserted or that the police are powerless in relation to the actions of gangsters who seek to extort.  I do not consider that state protection in relation to the extortion and related matters would be denied to the applicant for a Convention reason.’

14                  I am not satisfied that the RRT made any jurisdictional error or any error at all in not being satisfied that the appellant was unwilling or unable, because of persecution for a Convention reason, to avail himself of state protection from the extortion that he claimed to have suffered.  Thus, as the persecution complained of was by non-state actors, the factual finding of effective state protection was dispositive of the appellant’s claims in any event: see Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 205 ALR 487 at 493 [21].

15                  I have carefully considered the decision of the RRT and have been unable to discern any jurisdictional error on its part.  The FMC also carefully considered the RRT’s decision, and found that jurisdictional error had not been established.  I am not satisfied that any reviewable error was made by the RRT or the FMC.

16                  The appeal is to be dismissed with costs. 

Associate:

Dated:              11 October 2005