MZWQB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 419 (18 April 2006)

Last Updated: 18 April 2006

FEDERAL COURT OF AUSTRALIA

MZWQB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 419

MIGRATION – appellant claimed that he faced persecution from money lenders – whether claimed persecution was for a Convention reason


Judiciary Act 1903 (Cth), s 39B
Migration Act 1959 (Cth), s 91R(1)(a)




























MZWQB & MZWQC v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

VID 485 OF 2005

KENNY J
18 APRIL 2006
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 485 OF 2005

BETWEEN:	MZWQB & MZWQC APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT
JUDGE:	KENNY J
DATE OF ORDER:	18 APRIL 2006
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the respondent’s costs of the appeal.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 485 OF 2005

BETWEEN:	MZWQB & MZWQC APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT

JUDGE:	KENNY J
DATE:	18 APRIL 2006
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1 The appellants, a husband and wife, are citizens of India. They arrived in Australia on 29 January 2003. On 25 February 2003 they applied for a protection visa (class XA). Only the husband made claims to be a refugee. The appellant wife was included as a member of the family unit. For convenience, the appellant husband shall be referred to as the appellant in these reasons for judgment.

2 On 13 March 2003, a delegate of the first respondent refused the visa application. The appellant applied to the Refugee Review Tribunal ("the RRT") for review of that decision. On 30 July 2004, the RRT handed down its decision affirming the decision not to grant protection visas. On 25 August 2004, the appellant filed an application, pursuant to s 39B of the Judiciary Act 1903 (Cth), in the Federal Magistrates Court seeking review of the RRT’s decision.

3 The Federal Magistrates Court heard the application for review on 2 May 2005 and delivered judgment dismissing the application on the same day. The appellant now appeals from that decision.

4 I share the concerns expressed by the learned Federal Magistrate about this case. The appellant appears genuinely to fear for his safety if he should return to India. The RRT accepted this, but found that there was no Convention reason behind these fears. The Federal Magistrate found no error in the RRT’s decision. For the reasons I am about to give, I find no error in the judgment of his Honour or in the decision of the RRT.

The Appellant’s Claims Before the RRT

5 Before the RRT, the appellant claimed that he and his wife left India because of his fear of being persecuted due to an unpaid debt and his political opinion. He explained that he had borrowed a substantial sum from money lenders for his business. He was unable to keep up with the payments of this debt.

6 The appellant claimed to be an active member of a political party. He claimed that one of the leaders of the money lenders has strong links with a political party opposed to his own and to extremist groups.

7 The appellant claimed that, after he failed to pay his debts, the money lenders threatened to beat him up. Some months later, they came to his store and beat him severely enough that he required hospitalisation. He reported this incident to the police and there were no further assaults at that time.

8 With assistance, he obtained a visa for Australia and he and his wife came here leaving their young children in the custody of grandparents. The appellant hoped he would be able to earn sufficient money in Australia to repay the loan but he has been unable to do so. His family in India has received threats saying that he will be harmed if he returns to India.

The Decision of the RRT

9 The RRT accepted the appellant’s account of his experiences in India. It concluded that he had a genuine fear of persecution and there was a real chance he would suffer serious harm were he to return. The RRT found, however, that the appellant had failed to demonstrate that the persecution he feared was for one the five reasons enumerated (race, religion, nationality, membership of a particular social group and political opinion) in Article 1A(2) of the 1951 Convention Relating to the Status of Refugees ("the Convention"). The RRT was not satisfied that there was "any nexus at all" between the harm feared by the appellant and any Convention reason. The RRT therefore concluded that, under s 91R(1)(a) of the Migration Act 1959 (Cth) ("the Act"), the appellant was not eligible for a protection visa.

10 The RRT noted that the appellant’s own testimony at the hearing supported its conclusion. The appellant was asked directly whether his political activities had anything to do with his problems with the money lenders and he acknowledged that they did not.

Proceedings in the Federal Magistrates Court

11 The appellant appeared in person in the Federal Magistrates Court. He submitted brief written contentions of fact and law in which he argued that there was a nexus between the harm he feared and his political association. In these contentions, he stated that, although the initial cause of his problems for his difficulties was his debt, the money lenders will use their political affiliations to harm him.

12 His Honour held that the RRT had applied the law correctly and that its findings were open to it on the evidence. Accordingly, he dismissed the application for review.

Consideration

13 The appellant did not file any written contentions of fact and law. He appeared in person today and reiterated the claims he made before the RRT and the Federal Magistrates Court. In particular, he submitted that the money lenders who were pursuing him were connected with political and criminal groups and that he would not be at risk if he were part of those groups. The RRT considered these claims and found that there was no relevant connection between the persecution the appellant feared and any Convention reason, including persecution on the ground of political opinion. It was plainly open to the RRT on the evidence to so find. There is no error of law revealed in the RRT’s reasons.

14 The Notice of Appeal purported to raise nine grounds. These grounds were not particularised. A number of the grounds are no more than citation of cases. The appellant has not explained how any these cases are relevant to this appeal. I am unable to discern how they would help the appellant.

15 The appellant also claimed that the Federal Magistrate failed to consider that, given the situation in his country, he would face persecution in India. This claim is incorrect. The RRT and, thus, his Honour accepted that there was a real chance that the appellant would suffer serious harm if he returned to his home town and was unable to repay his debt. The difficulty, so far as the appellant is concerned, is that his Honour (and the RRT) found that the appellant’s claims of harm at the hands of the debt collectors needed to have a relevant nexus with a Convention reason to satisfy the criteria for a visa. His Honour found no error in the Tribunal’s finding that there was no such nexus. I can discern no error in his Honour’s judgment in this regard.

16 In his Notice of Appeal the appellant also claimed that he sought to file a transcript of the RRT hearing in the Federal Magistrates Court but his request was not considered. He withdrew this claim today, saying that he made no such request of the Federal Magistrate.

17 For the reasons stated, the appellant has shown no error in the Federal Magistrate’s conclusion that there was no error in the RRT’s decision and I would dismiss the appeal with costs.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.

Associate:

Dated: 18 April 2006

Counsel for the Appellant:	The appellant appeared in person
Counsel for the Respondent:	Sharon Moore
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	18 April 2006
Date of Judgment:	18 April 2006