FEDERAL COURT OF AUSTRALIA

MZZBR v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 786

THE COURT ORDERS THAT:

1.    Leave be granted for the title of the first respondent in the Notice of Appeal dated 29 May 2013 to be amended from Minister for Immigration and Citizenship to Minister for Immigration, Multicultural Affairs and Citizenship.

2.    The appeal be dismissed.

3.    The appellants pay the first respondent’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Delivered Ex Tempore and Revised)

Introduction

1    This is an appeal against a decision of the Federal Circuit Court. The appeal was lodged on 29 May 2013 and there are two grounds of appeal relied upon. They are:

1.    The FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicants’ claim and ignoring the aspect of persecution and harm in terms of Sec.91R of the Act. The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation.

2.    The learned Federal Magistrate has dismissed the case without considering the legal and factual errors contained in the decision of the RRT.

2     The appellants are unrepresented. The first appellant brings this appeal on behalf of himself and his wife. They are both nationals of India. His wife made claims, as she was entitled to do, as a member of her husband’s family unit. The first appellant has been assisted by an interpreter in the Gujarati and English languages before me, as he was before the Federal Circuit Court and before the Refugee Review Tribunal (Tribunal).

3    Before the appeal commenced, the Court arranged for the Minister’s submissions to be interpreted to the first appellant.

4    I begin with the background to this appeal. The appellants are husband and wife, and are nationals of India who entered Australia on 13 January 2011 as the holders of tourist visas. They applied promptly for protection visas on 31 March 2011, but that application was invalid for reasons that are not presently material. On 20 May 2011 the appellants applied again for protection visas. The appellants’ claims in substance are set out in a letter they wrote to the Department. Identifying information has been omitted.

Respected Sir,

With respect I inform you, I [name deleted] I lived with my wife [name deleted] at [address deleted] Gujarat India since 2010.

I has been finished my study in 1980. I started weaving factory, name of factory was [name deleted], after then I married with [name deleted]. I closed factory in 2000 because of loss. I worked in private company from 2000 to 2003. Then I started new factory in 2003 name of [name deleted], at that time two children born in our life.

There was financial crisis in October 2008, that’s why I need money to continue my business, I have borrowed 20 lacks Indian rupees in December 2008 from one Muslim guy with interest, my friend introduce with one Muslim guy, his name is [name deleted], I gave my land and house documents to [name deleted] as security of his money, I gave 15 lacks rupees and interest back to him in February 2009, In April 2009, I went back to his house to give 5 lack rupees and interest but he said, give me more money. He refused to give back my documents and beat me, then I contact my friend. I said help me to get back documents from [name deleted] and also give back his 5 lacks rupees and interest. My friend told me to contact him after 2 days, After 2 days I contacted my friend, he gave me same answer like [name deleted]. I requested to [name deleted] to give my documents back, but he is not ready to give me my document back, because I gave him my land and house papers as security, its market value is more than 30 lacks rupees, I need to give only 5 lacks rupees back to him.

After that I complained in police station opposite of [name deleted], police wrote my complain, and police said come back after 2 days, I went to police station after 2 days, police said give money back to [name deleted], I said he want more money instead of 5 Lacks rupees. Police said I can’t any help you in this case, after then I complain in another police station but they cannot gave answer, one day I got called from [name deleted] and he threaten me if you complain in police station I will kill you, after than I complained in police commissioner office but they couldn’t give any response. One day I was working in my factory at that time [name deleted] and 5 peoples beaten me, and broken my factory furniture’s, then I complained in criminal court against [name deleted] but there is no any process in court. I was depressed because of [name deleted] threaten and harassment.

My children live alone after all problems and financial crisis, and they broken relation with me and my wife and I was alone. I am tired because of [name deleted] threaten me and broken my factory furniture’s, police doesn’t take any action against [name deleted], [name deleted] can do anything with me because he is Muslim, I am alone and at that age I can’t ability to fight with [name deleted], and I have also risk of my life.

With respect, you can contact me any time for more information about my protection visa application.

YOUR’S FAITHFULLY

5    The Minister’s delegate refused to grant the appellant and his wife protection visas on 12 December 2011. The delegate’s principal findings were:

I find that the applicant’s claims demonstrate that his fear of harm is based on a personal dispute concerning money in India, and that these claims do not fall under a Convention category.

State Protection

As I have found that the fear of harm is not from state agents and is not related to the Refugees Convention, I will now consider the question of the adequacy of state protection. If that protection is withheld from the applicant for a Convention reason then the fear of harm, though private and non Convention related in itself, may nevertheless, constitute persecution. In the High Court decision in Minister for Immigration v Khawar (2003) 210 CLR 1 the majority found that the selective and discriminatory withholding of state protection for a Convention reason may constitute persecution for a Convention reason even where the harm feared is for a non Convention reason.

As mentioned, while the applicant did produce documents that he purports were presented to the local authorities, there is nothing in the evidence before me to suggest any reason that the Indian government would fail to provide the applicant with the same degree of protection as that accorded to any of its other nationals. There is nothing before me to suggest that the authorities would fail to assist him or protect him due to his race, nationality, religion, political opinion or his membership of a particular social group.

Available country information indicates that India has law enforcement systems and judicial processes which are available to deal with criminal acts against the applicant. Given current country information I am of the view that the applicant will not be denied state protection for a Convention reason, notwithstanding the effectiveness of that protection.

6    As they were entitled to do, the appellant and his wife applied to the Tribunal for review of the delegate’s decision on 5 January 2012. The Tribunal conducted a hearing on 1 June 2012, and the first appellant appeared at that hearing assisted by an interpreter. He made submissions and gave evidence. The Tribunal made a decision affirming the delegate’s refusal to grant protection visas. That decision was made on 25 September 2012. The appellant applied for review of the Tribunal’s decision and on 10 May 2013 the Federal Circuit Court dismissed his application for judicial review.

7    The matter now comes before this Court. There were four grounds of review that the appellant raised before the Federal Circuit Court, none of which the learned Federal Circuit Court Judge found to have been made out. There was one aspect of her Honour’s reasons that did concern me initially and that I raised with counsel for the Minister, and that was the way that her Honour had dealt with the application of s 424A of the Migration Act 1958 (Cth) (the Act) to the Tribunal’s decision. I accept the submissions made on behalf of the Minister about this issue and I am satisfied the Tribunal complied with its obligations under s 424A, through the use of the procedure set out in s 424AA.

8    Her Honour was correct, in my opinion, to reject the other grounds of review, including the argument about the Tribunal having a duty to make inquiries that it failed to perform. In my opinion the Federal Circuit Court was correct to rely on the High Court’s decision in Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594.

9    I turn now to deal with the appellants’ two grounds of appeal in this Court and the other matters that I raised both with the first appellant and the Minister’s counsel during the hearing. I will begin with the submissions made on behalf of the Minister. In addition to relying on his written submissions, Mr Knowles made three submissions in relation to matters I asked him about. In summary he submitted that, first, the Tribunal understood the principles relating to claims of extortion and specifically found the reason in this case was not related to the appellants’ religion, but was a personal reason. Secondly, he submitted the Tribunal considered the social group issue at [96] of its reasons and did so without any legal error. Thirdly, he submitted the Tribunal correctly understood the approach both under the Refugees’ Convention and under s 36(2)(b) of the Act in relation to the possibility of relocation within India, and he submitted the relocation finding by the Tribunal was a separate and independent ground for affirming the delegate’s decision.

10    In response, the first appellant made three points. First, he said that the person he complained against in India is a bad criminal and that he had been able to call the appellant on his mobile in Australia, and the fact that he could do that made the appellant feel that if that man could reach him here, he could cause him harm if he returned to India. Secondly, when I asked him about the reason for the way that individual was treating him, the appellant said that it was not because he was a Hindu, but because of the complaints he had made to the police. Thirdly, when asked about the Tribunal’s relocation finding, the appellant said to the Court that it was true that such a finding was made, but that the appellant lives in Australia without fear and, in India, he would have nothing in his hands and it would be very difficult to restart his life.

11    The first ground of appeal is that the Tribunal dealt in a manifestly unreasonable way with the appellants’ claim and that the Federal Circuit Court did not deal adequately with this. I do not accept that allegation. I consider the decision of the Tribunal is a carefully reasoned one. The first ground of appeal also alleges that the Tribunal ignored an aspect of persecution and harm in terms of s 91R of the Act and that the Federal Circuit Court failed to consider this. Contrary to the appellants’ submission, the Tribunal dealt expressly with s 91R at [93] of its reasons. Indeed, it made a finding that in many respects was favourable to the appellants:

93    The applicant conceded that it was the financial crisis rather than the 20 lakhs loan that caused the failure of his business. The Tribunal accepts that the applicant has been treated for depression. The Tribunal does not have expert evidence that might help it reach conclusions about the effect that factors such as the failure of the business or family disharmony or pressure by the money lender may have had on his mental state. It may be that the applicant’s mental state made him more vulnerable to the money lender’s threats. The Tribunal finds that those threats were made. Whether they amounted to “serious harm” within the meaning of s 91R of the Act is a question of fact and degree: see VBAS v MIMIA [2005] FCA 212 at [28] per Crennan J. On 26 January 2010 the threats were made by a group of five or six people who included the money lender. At the same time the applicant was mishandled and property was damaged. The Tribunal considers that this constituted serious harm. Still the Tribunal has to consider the risk of future persecution: see VBAO v MIMIA [2006] HCA 60 at [3]. The money lender knew where the applicant lived and, directly or indirectly, contacted the applicant at his home by telephone and in person after the visit to the factory. It does not appear however that the applicant came to any serious harm at the hands of the money lender during the twelve months from January 2010 to January 2011. That may indicate that the money lender had merely tried to bluff the applicant, or that the money lender thought better of trying to pursue him – whether perhaps because the money lender knew he was prepared to go to the police or the money lender considered that the applicant was in no position, financially or otherwise, to pay any more at the time. Whatever the case, the history subsequent to January 2010 leads the Tribunal to conclude that there is now no real chance that the applicant would suffer serious harm from [name deleted] or his associates in the reasonably foreseeable future if he were to return to India.

12    However following on from that and, critically, the Tribunal concluded that a year then passed before the appellants left India, during which time they did not come to any serious harm at the hands of the moneylender. The history after January 2010 led the Tribunal to conclude there was no real chance of serious harm from the moneylender or his associates in the reasonably foreseeable future, if the appellants were to return to India. That finding was open to the Tribunal.

13    The second ground of appeal is a generalised argument that the Federal Circuit Court did not, in effect, consider the legal and factual errors in the Tribunal’s decision. I am satisfied there is no substance for this argument and I reach that conclusion having looked independently and broadly at the Tribunal’s decision. The key features of the Tribunal’s reasons are as follows:

14    First, the Tribunal accepted the first appellant’s evidence as credible and reliable (at [90]). That is, it accepted his narrative of what had happened to him.

15    Secondly, it accepted the country information about the operations of moneylenders in India (at [91] of the reasons):

91    There is country information that unscrupulous and often violent money lenders are a major problem in parts of India and that police corruption can exacerbate the problem.

16     Thirdly, it accepted that the threats, personal assault and damage caused by the moneylender and his associates to the appellants amounted to serious harm within s 91R (at [93] of the reasons), but it found the harm ceased in January 2010, a year before the appellants left India. The Tribunal was not satisfied that kind of harm would occur again (at [93]).

17    However, on the assumption the Tribunal might be wrong on those findings, it went ahead and considered whether the harm, if it might be suffered again when the appellants returned to India, would be for a Convention reason. It found the harm was, and would be in the future if it occurred, motivated by personal reasons, not Convention reasons (at [96]). Further, it found that in any event there would be adequate state protection by the Indian authorities (at [101]).

18    Finally, the Tribunal found the appellants could reasonably relocate to another part of India:

102    Notwithstanding the above conclusions, the Tribunal has gone on to consider relocation. It is the money lender and his associates whom the applicant fears. Although the applicant expressed his fears about the matter, the evidence does not indicate that the money lender’s reach extends beyond the city of [name deleted] let alone beyond the state of Gujarat. On the evidence before it the Tribunal finds that any threat of harm would not extend beyond the State of Gujarat. In the Tribunal’s view, it would be reasonable, in the sense of practicable, for the applicant to relocate outside of Gujarat (where there would be no real chance of persecution for a Convention reason even if there could be said to be a real chance of persecution for a Convention reason in Gujarat).

103    The applicant’s real objection to relocation was that he has not been outside Gujarat before. The Tribunal has had regard to the applicant’s age and general circumstances. He has confirmed that his mental health has been restored. The Tribunal has noted his concerns about economic conditions in the states surrounding his home state. The applicant and his wife have however proven themselves to have the adaptability to live in Australia and perform physically demanding work here. Although his age may now be a factor, the applicant’s qualifications, experience and language ability would be expected to enable him to earn an adequate livelihood. From a material point of view, the applicants’ position in India should be improved by the fact that he owns property there. Depending on the outcome of the dispute with the money lender, the farm and house in his native village may not be available in the longer term as a source of income, but the flat in which his sons reside should one way or another provide a financial benefit to him even if he says at this point that he would not demand rent from his sons.

19    Properly, the Tribunal went on to consider the issue of complementary protection under s 36(2)(aa) of the Act and found, for similar reasons, that there was no risk of significant harm and that the appellants could in any event relocate (at [105] of the reasons). In other words, the Tribunal was satisfied the appellants’ claims were not made out for several distinct reasons. To secure the possibility of a different outcome, the appellants would need to disturb the relocation finding as well as the other findings, and I am satisfied there is no jurisdictional error in the approach taken by the Tribunal to that issue.

20    I have also considered the way the Tribunal approached its finding that the appellants were not members of a social group for the purposes of Art 1(A) of the Convention, and the way the Tribunal approached its findings that the reasons the moneylender was extorting the appellants were not Convention reasons. The authorities in this Court have identified the care needed when dealing with claims of extortion and in deciding if there is a Convention reason for the extortion. In Rajaratnam v Minister for Immigration and Multicultural Affairs (2000) 62 ALD 73, the Full Court stated at [46] to [48]:

46    As this Court has indicated on several occasions, care needs to be taken when considering whether extortion has been practised upon a person for a Convention reason: see, eg, Minister for Immigration and Multicultural Affairs v Sarrazola (1999) 95 FCR 517 … The need for this is apparent enough. In the usual case of extortion the extorting party will be acting for a self-interested reason (ie to gain an advantage for himself or herself, or for another). In this sense, his or her interest in the person extorted can always be said to be personal. What needs to be recognised, though, is that the reason why the extorting party has that interest may or may not have foundation in a Convention reason. The extorted party may have been chosen specifically as the target of extortion for a Convention reason, or may have become the subject of extortion because of the known susceptibility of a vulnerable social group to which he or she belongs, that social group being identified by a Convention criterion. Or, conversely, the person may have been selected simply because of his or her perceived personal capacity to provide the particular advantage sought and for no other reason or purpose.

47    Likewise in the course of practising extortion on a person, self-interested action may be taken against the extorted party for the benefit and/or protection of the extorting party. Again it can be said that in taking such action, the extorting party's interest in the effect of it on the other is a "personal interest". But depending on whether the extortion itself is being practised for a reason that includes a Convention reason, the action in its setting may nonetheless be relevantly persecutory in character.

48    In a particular setting, then, extortion can be a multi-faceted phenomenon exhibiting elements both of personal interest and of Convention-related persecutory conduct. For this reason the correct character to be attributed to extorsive conduct practised upon an applicant for refugee status is not to be determined as of course by the application of the simple dichotomy: "Was the perpetrator's interest in the extorted personal or was it Convention related?" In a given instance the formation of the extorsive relationship and actions taken within it can quite properly be said to be motivated by personal interest on the perpetrator's part. But they may also be Convention-related. Accordingly any inquiry concerning causation arising in an extortion case must allow for the possibility that the extorsive activity has this dual character.

21    Likewise, in SHKB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 545 at [12], Selway J pointed out the potential for jurisdictional error if a Tribunal viewed serious harm because of retribution as antithetical to serious harm for a Convention reason. The point his Honour was making at [12] is that one must look at what is motivating or actuating the people seeking retribution:

12    In my view the attempt by the Tribunal to draw a distinction between Convention based reasons and retribution involves a jurisdictional error. In Minister for Immigration & Multicultural Affairs v Singh (2002) 209 CLR 533 (‘Singh’) the High Court held, although in a slightly different context, that where an act of revenge or retribution is derived from or arises out of a political act or campaign then the act or revenge or retribution may be a political act: see at 544-545, 550-553 and 577-578. As it was put by Gleeson CJ at 545

‘[The Tribunal] was proceeding upon a view that there is a necessary antithesis between violent retribution and political action. That was an error of law’.

The Tribunal in this case would seem to have fallen into the same error. In this case the Tribunal would seem to have proceeded on the view that there was an antithesis between retribution on the one hand and political or racial persecution on the other. At the very least there was a further step that was necessary in the Tribunal’s reasoning - the Tribunal was required to determine whether or not it was satisfied that those seeking retribution against the applicant were doing so as an aspect of a broader political or racial campaign to seize farm lands near Durban, or were doing so for reasons unrelated to that campaign. If the Tribunal was satisfied that the retribution formed an aspect of such a broader campaign then it would follow that fear of such an act of retribution was a fear based upon a Convention reason. In my view the Tribunal has fallen into the same error as that identified in Singh.

22    This was a key aspect of the appellants’ case. Accordingly I have looked carefully at the Tribunal’s reasons and questioned the Minister’s counsel about the Tribunal’s approach.

23    I am satisfied the Tribunal was alive to these issues and understood the legal principles it had to apply. At [95] it referred to and applied Rajaratnam in considering the appellants’ claim, and the finding that it made in that paragraph was, in my opinion, open to it; namely, that there was insufficient evidence for the Tribunal to conclude that the moneylender was motivated to act differently because of the religious belief of those he was extorting.

24    There is a further conclusion by the Tribunal at [96] that the moneylender was motivated by the appellants’ complaints to police and the moneylender’s desire to secure a financial advantage from the appellant, both of which were personal reasons to the appellants and not Convention related. The appellant, in his own submissions before this Court, referred to the moneylender’s motivation as being the appellants’ complaints to the police. I took that not as evidence from him, but as a recognition that the Tribunal’s finding in this respect was open to it.

25    In my opinion, the Tribunal was alive to the need referred to by the Full Court in Rajaratnam to look at why this particular extortion had been imposed on the appellants. The Tribunal could not see on the evidence a Convention reason for the extortion, and that was part of the fact-finding task reserved to it and not to this Court.

26    For those reasons I am satisfied there is no error in the decision of the Federal Circuit Court and I am also satisfied there is no apparent jurisdictional error in the Tribunal’s decision. There will be an order dismissing the appeal. The appellant should pay the respondent’s costs. I can see no circumstances which would justify departing from the usual order.

Associate:

Dated:    20 August 2013