MZWCQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1392

FEDERAL COURT OF AUSTRALIA

MZWCQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1392 MZWCQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 187 affirmed Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 cited MZWCQ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS VID 124 OF 2005 HEEREY J 26 SEPTEMBER 2005 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 124 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: MZWCQ

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: HEEREY J

DATE OF ORDER: 26 SEPTEMBER 2005

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs. 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 124 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: MZWCQ

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: HEEREY J

DATE: 26 SEPTEMBER 2005

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 The appellant appeals from a decision of the Federal Magistrates Court which dismissed an application for review of a decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister to refuse the appellant a protection visa. The appellant is a citizen of India aged 47. He is a Christian and his claim to be a refugee was based on fear of persecution as a Christian in India. The account that he gave to the Tribunal is set out in the decision of the learned magistrate: MZWCQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 187. 2 In essence the claim as presented to the Tribunal centred around three events, the first in September 1998, the second in December 2001, and the third in March/April 2002. In the second and third incidents the appellant was involved in incidents of violence. 3 In December 2001 the appellant and four of his friends attacked a group who had interrupted a Christian social function. They beat them about the legs and hands with hockey sticks. 4 In March/April 2002 in Surat the appellant and friends attacked the office of a political party, badly injuring five men, one of whom later died. Until he left India the appellant had been avoiding a warrant for arrest for this incident. 5 The learned magistrate found that the Tribunal had assessed the evidence of the appellant and specifically accepted his account of the three incidents already referred to. The learned magistrate found that the Tribunal had simply made a decision based on the material before it and the decision was reasonably open to it on the facts as presented by the appellant. The learned magistrate held that there had been no jurisdictional error of the kind which would permit this Court to interfere with the decision of the Tribunal. 6 The appellant was not legally represented before this Court on the hearing of the appeal. He had filed an outline of submissions dated 15 August 2005. He did not wish to add to these at the hearing. In his submissions the appellant alleged that Hindu organisations in India were responsible for violence against Christians. He said that the Tribunal "turn[ed] my case from refugee to criminal this is not at all acceptable this is the biggest error of law that to turn an refugee or protection case into criminal". 7 I agree with the learned magistrate that the reasons of the Tribunal did not disclose any error. On the appellant's own evidence he was involved in a serious criminal offence and as the Tribunal noted it is well established that people fleeing from prosecutions or punishments for a common law offence are not normally refugees. The High Court has held that non-discriminatory enforcement of a generally applicable criminal law or laws designed to protect the general welfare of society does not constitute persecution for the purposes of the Refugee Convention: Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225. 8 This was the central point of the appellant's case before the Tribunal. Indeed, in his oral evidence to the Tribunal the appellant resiled from most of the other claims that he made in his application for a protection visa, such as statements and general comments about the alleged persecution of Christians in India. 9 There is no substance in this appeal and it will be dismissed with costs. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.