ABQ15 v Minister for Immigration
[2015] FCCA 737
•26 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ABQ15 v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 737 |
| Catchwords: PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed. |
| Legislation: Immigrants and Emigrants Act 1949 (Sri Lanka) |
| Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 SZTIB v Minister for Immigration and Border Protection [2015] FCAFC 40 |
| Applicant: | ABQ15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 486 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 26 March 2015 |
| Date of Last Submission: | 26 March 2015 |
| Delivered at: | Sydney |
| Delivered on: | 26 March 2015 |
REPRESENTATION
| The Applicant appeared in person. |
| Solicitors for the Respondent: | Ms S. Lloyd Minter Ellison |
ORDERS
The procededings be summarily dismissed.
The Applicant pay First Respondent’s costs fixed in the sum of $1367.
| FEDERAL CIRCUIT COURT AT SYDNEY |
SYG 486 of 2015
| ABQ15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal made on 28 January 2015 affirming a decision not to grant the applicant a Protection (class XA) visa.
The grounds of the application are as follows:
1. The First Respondent, the Tribunal/Second Respondent committed an error of law amounting to a jurisdictional error by failing to carry out and assess its statutory function to review the decision as required by s.36(2)( aa) of the Migration Act 1958 ("the Act").
2. The Tribunal did not consider the Applicant's claim for complementary protection with all materials provided to the tribunal for real risk suffering from significant harm if removed from Australia.
3. Tribunal failed to consider the stress and anxiety for an applicant to attend the Tribunal. Paragraph 37, Tribunal identifies the applicant as "vague and unpersuasive and as he frequently failed to respond to specific questions" however as paragraph 37 continues the Tribunal states the applicant as an "intelligent young man with a good understanding of Pakistan's political situation." Thus contradicting statements by the Tribunal.
4. The Tribunal's decision is vitiated by an absence of an evidence and intelligible justification for the rejection of the applicant's claims, thus giving rise to jurisdictional error for illogicality or unreasonableness
5. I currently do not have a lawyer representing me in respect of my Federal Circuit Court application. I am willing to seek legal representation if the court requires further documentation or an amended application.
Under the first Court date, the application provides:
The Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceeding.
The Court raised with the applicant, having looked at the application and having read the Tribunal’s decision, that the Court was concerned that the application failed to disclose any arguable jurisdictional error in the conduct of the review by the Tribunal and was minded to consider exercising its summary disposal powers.
In considering the application of s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001), the principles and caution in Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28, and, in particular, [24]-[25] and [59]-[60].
The applicant indicated that he wanted to get a lawyer – that he wanted time to go and save money so that he could get a lawyer. He identified his concern with the adverse findings of credit by the Tribunal and that he and his family would suffer harm if they were returned.
In relation to the application for an adjournment by the applicant, there is no utility in granting an adjournment if the proceedings are clearly doomed to failure as it will only add to the costs of the parties and utilise valuable Court time. For the reasons given in this decision, I am clearly satisfied that the proceedings are doomed to failure. It is clear from the application that the grounds do not identify any proper jurisdictional error and are an attempted impermissible challenge to the findings of fact by the Tribunal that were open.
The applicant arrived in Australia from a subclass 572 student visa on 23 July 2008. It was not until 13 March 2013 that he applied for a Protection (class XA) visa. The delegate refused to grant that visa on 14 March 2014. Materially, the delegate found the applicant’s claims regarding his involvement with MQM in Pakistan had been manufactured and that the involvement with MQM in Australia was for the purpose of strengthening his claims to be a refugee.
The Tribunal held a hearing on 12 December 2014, at which the applicant gave evidence and presented arguments. The Tribunal also heard from other witnesses, and following the hearing, the Tribunal was provided with a further submission and also had the benefit of a statutory declaration of the applicant dated 8 December 2014.
The Tribunal made serious adverse findings as to credit in respect of the applicant. I am satisfied that those findings were open and that there is a proper basis for reaching the findings. Relevantly, the Tribunal found as follows:
26. Having considered all of the evidence, the Tribunal does not accept that the applicant has given a truthful account of his experiences in Pakistan prior to his arrival in Australia; or his family’s experiences in Pakistan whilst he has been in Australia. The Tribunal accepts that the applicant, a [M], supports the MQM and may have had some involvement with the MQM in Pakistan when he joined as a member in September 2007 and until he left in mid 2012 on a Student visa. The Tribunal does not accept that it was to the extent claimed by the applicant and considers that he has fabricated his claims regarding his and his family’s involvement with the MQM in Pakistan. The Tribunal does not accept that the applicant or his family had any political profile in Pakistan that brought them to the attention of opposing political groups or extremist groups. The Tribunal does not accept that the applicant, his uncle, his father or his brother have been threatened or harmed at any time by rival political groups or by militant groups associated with the Taliban or Sepah-e-Sahaba or any other extremist organisations. The Tribunal further considers that although the applicant may have become a member of the MQM upon his arrival in Australia, there is limited evidence that he was actively involved until mid 2012, some four years after his arrival and the year before he lodged an application for Australia’s protection. The Tribunal accepts that the applicant’s involvement with the MQM in Australia has not been solely for the purposes of strengthening his claims for protection, but considers he has been motivated to a significant degree by his need to obtain evidence to assist his application for protection. The Tribunal has formed the view that the applicant is not a truthful witness and, after several years in Australia, he has sought to manufacture claims to provide a basis for remaining in Australia on a permanent basis. The Tribunal does not accept the applicant’s frequent assertions in statements and during the hearing that he wished to return to Pakistan and would have done so if it were not for the problems he encountered. In reaching these conclusions, the Tribunal has had regard to the applicant’s evidence to the Department and the Tribunal, the submissions, the independent evidence provided by the representative and that obtained through the Tribunal’s own inquiries. The Tribunal’s consideration of the evidence and its reasons for reaching its conclusions follows.
27. The Tribunal has firstly considered the evidence relating to the significant delay in the lodgement of the application. The evidence indicates that the applicant arrived in Australia on a Student visa in August 2008, but did not lodge his application for a Protection visa until March 2013, almost five years after his arrival in Australia, despite claiming that he left Pakistan because of serious threats as a result of his work for the MQM, and that his family was threatened and harmed from March 2012. At the Tribunal hearing, the applicant stated that he applied for an extension on his Student visa but it was refused. The applicant’s father’s Rent a Car business had ceased operating at that time and he did not have any money to help the applicant pay his student fees. When the applicant went to his College he asked them for more time to pay his fees, but they then “complained” to the Department and the Student visa application was refused. The applicant claims that he was, therefore, unable to continue his studies in Australia.
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30. The Tribunal advised the applicant during the hearing that his evidence indicates he came to Australia as a student and his evidence that his young brother and his father were both kidnapped and his father tortured is not consistent with the fact that he remained in Australia studying and working without making an application for protection until the following year. In response, the applicant stated that he was “too young” when he arrived and was unable to decide what to do. He was 19 or 20 years of age and although he talked to people in the community he did not tell anyone at the MQM about his problems until his father was kidnapped in May 2012. When reminded that he did not apply for protection until 10 months after that time, the applicant again stated that he was confused and did not know what to do. He stated that although he worked for the MQM whilst these incidents occurred he was unable to decide what to do because of his “condition”. He did not know who could help him and was anxious and confused because MQM workers had been attacked and three of the members of the Provisional Assembly were hurt.
31. In his statement after the hearing, the applicant also states that it was “never in my mind” to stay in Australia permanently. He wanted to study while away from Pakistan and then return, but the situation deteriorated and his family suffered financially and physically. The applicant also stated that he received his Student visa at “the most opportune moment” and came to Australia believing he would return and conditions would improve and he would no longer be under any threat. The threats have, however, never stopped and the conditions have worsened. Although he wanted to return to Pakistan, his father forced him to stay and he suffered depression and stress, and it was only when he realised he had no other options that he decided to apply for a Protection visa.
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33. The Tribunal does not accept that the applicant’s failure to take any action to lodge an application for Protection until March 2013, in circumstances where he had ceased his studies and was unable to remain in Australia, is consistent with his claims regarding his experiences in Pakistan prior to his arrival or the threats made to his family members, and the harm suffered by his family members in Pakistan. The Tribunal does not accept the applicant’s many and varied explanations as to why he was unable to seek protection at an earlier time. The applicant has provided evidence indicating that he joined the MQM in 2008 when he arrived in Australia. The Tribunal does not accept that he could not have sought the assistance of persons associated with the MQM or that he was reliant on his uncle to tell him what he should do. Nor does the Tribunal accept that the applicant was so confused or not mature enough to obtain advice about seeking protection in Australia. The Tribunal considers that the evidence indicating that the applicant was working, even if it was as a labourer, from 2008 when he arrived in Australia, indicates that he was able to obtain and retain employment for some years whilst he has been in Australia. The Tribunal also does not accept that it is credible that the applicant would consider, in circumstances where he claims his uncle had to leave Pakistan, his father and brother were kidnapped and his father apparently badly beaten such that he was unconscious at least on one of those occasions, and had to go to the Taliban court to resolve the situation, that he could soon after return to Pakistan and complete his work with the MQM. The Tribunal further considers that had the applicant been threatened by the Taliban or an extremist group in early 2008 and feared harm in Pakistan as a result of this and his involvement in intelligence gathering that he would have sought Australia’s protection soon after his arrival in Australia, or at least in 2012 when he claims his father and brother had been kidnapped and asked about him and his uncle’s whereabouts by persons associated with extremist groups. In the Tribunal’s view, the evidence in relation to the significant delay in the lodgement of the application, in circumstance where he claims ongoing threats and harm to himself and his family, is problematic and indicative of the fact that the applicant has manufactured his claims following the cessation of his studies and his inability to remain in Australia on a visa granted to him for that purpose.
34. The Tribunal also considers that the evidence regarding his reasons for leaving Pakistan in 2008 raises further concerns that he has fabricated his claims to fear harm. In his second statutory declaration to the Department, the applicant states that he began officially working for the MQM in May and June 2007 and helped local intelligence officers of the Karachi police, the CID and some local undercover vigilance committee members of the MQM. The applicant states that the fear of harm was there when he was undertaking his tasks for the MQM and the police in May and June 2007. He claims that his Student visa application was already in process for Ireland he was mentally prepared and ready to leave Pakistan. However, in September 2007 the High Commission of Ireland refused his visa and he did not know what to do for his safety. The applicant claims that he decided to “officially” join the MQM in September 2007 because if anything happened he could be protected and by December 2007 he had completed various duties for the MQM leading up to the General Election which was held on 18 February 2008, including door to door surveys in his suburb, arranging meetings, encouraged locals to vote for the MQM and distributing pamphlets. The applicant claims that other political parties were also working in his suburb and due to his political activities workers and supporters of other political parties began recognising him as an “activist” for the MQM. The applicant feared that if a new government came to power they may change their policies towards the MQM (A) and target its activists and it was for that reason he decided to apply for a Student visa before the general election of 2008. He claims that it was after the elections that he began getting threats, messages and calls and he began receiving threatening calls after the election and it scared him a lot and he decided to leave the country.
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36. The Tribunal accepts that the applicant has claimed that he always wanted to study outside of Pakistan, but considers that his evidence indicates that he had made plans to leave Pakistan in mid 2007 when he made an application to Ireland, which was before he claims to have had any problems at all because of his work for the MQM. The applicant’s evidence also indicates that he had made plans to study in Australia before the general election and claims that it was after that time that he experienced threats. The Tribunal does not accept that the applicant’s evidence indicates that he had any reason to be fearful in mid 2007, given that he had not had any problems at that time because of his purported role in collecting data for his uncle, or as a result of his work in the election campaign in early 2008. However, his own evidence indicates that he had made applications for Student visas to leave Pakistan in mid 2007 and early 2008. The Tribunal considers that the applicant’s evidence in relation to the significant delay in the lodgement of the application, as well as the evidence indicating that he had made plans to leave Pakistan at a time that he had minimal involvement in the MQM and no problems as a result, indicates that his motivation for leaving Pakistan was to study elsewhere. The Tribunal does not, therefore, accept that the applicant’s evidence establishes that he left Pakistan because he was fearful. The Tribunal considers that the applicant’s evidence in relation to this issue raises further concerns that he has fabricated his claims regarding his experiences in Pakistan between mid 2007 and mid 2008.
37. The Tribunal also considers that the applicant’s claims in relation to the threats and harm he and his family members experienced in Pakistan is problematic. In this respect, the Tribunal considers that the applicant’s evidence during the hearing in relation to the threats and harm he and his family experienced was vague and unpersuasive and he frequently failed to respond to specific questions and instead provided generalised evidence regarding the political situation in Pakistan, without referring to his own situation or that of his family. Whilst the Tribunal accepts that a hearing is a stressful situation and an applicant may in such an environment be somewhat unfocused in providing evidence. However, the applicant impressed the Tribunal as an intelligent young man with a good understanding of Pakistan’s political situation. Tribunal considers that the applicant was frequently asked the same questions several times before he responded, and instead reverted to his statement or to a lengthy discussion on the political situation in Pakistan. Thus, the applicant was asked several times about his uncle’s involvement in the MQM and why his uncle left Pakistan, but referred at length to the general political situation and to his uncle’s involvement in assisting in the elections and the fact that the MQM was no longer in government. After being asked about this at length, the applicant acknowledged that his uncle may have left Pakistan because he had a business in Malaysia and he did not really know why he had left Pakistan and returned to Malaysia.
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39. As discussed during the hearing, the Tribunal does not accept that it is credible that banned organisations would take action against the applicant’s family some four years after he had left Pakistan as a result of his role in “collecting data”. The Tribunal accepts that there is evidence indicating that the Taliban and other terrorist organisations have infiltrated the Pakistan security forces and police to a very minor extent. However, the Tribunal does not accept that the evidence indicates that this is to the extent that they are able to gather information on persons who may have had some minor involvement in the MQM some years earlier or who may have obtained information by sitting in a mosque and then identifying people for a period of some two months in 2007. The Tribunal considers it not credible that almost four years after he left Pakistan for Australia that terrorist organisations would then threaten and kidnap his father because they had been able to discover that the applicant had sat in a mosque for some days and looked at photographs of people who had been in the mosque. The Tribunal considers that the applicant’s unpersuasive evidence in relation to his uncle, as well as his evidence that his father and brother were kidnapped in some years after the applicant left Pakistan is not credible and indicative of the fact that his claims have been manufactured.
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41. The Tribunal does not accept the applicant’s explanation for the fact that the documents all refer to his mother as “widow”. It was only when it was raised by the Tribunal that the applicant acknowledged the problematic nature of the documentation. The Tribunal considers it not credible that the different organisations, one being the Supreme Court, the others being the Sindh Police Department, the Office of the Deputy Inspector, and the Inspector General’s office would all rely on the same document from the Supreme Court. The Tribunal also considers that the content of the documents is vague and it is unclear what matter they are referring to. The Tribunal further considers that the letter which has been sent to the applicant’s father purportedly from Sepah-e-Sahaba is further indicative of the fact that the applicant has been prepared to fabricate evidence. As indicated above, the Tribunal does not accept as credible that a terrorist group would have discovered that the applicant was involved in obtaining “intelligence” or data collection by sitting in a mosque watching people and then looking at photographs. The Tribunal also does not accept that this resulted in some people being apprehended and and then send a threatening letter to the applicant’s father after the applicant left Pakistan and was residing outside of the country. As discussed during the hearing, the independent evidence indicates that false or fraudulent documents are prevalent and available in Pakistan. In the context of the problematic evidence discussed above, the Tribunal considers that the evidence in relation to this issue is indicative of the fact that the documentation has been fabricated for the purposes of the application.
The Tribunal correctly addressed the applicant’s alleged involvement in MQM in Australia and relevantly found:
45. The Tribunal accepts that the applicant had some involvement with the MQM from 2008 in relation to assisting students with accommodation, and he may at some time have become the finance secretary and in charge of the [L] Unit. However, the Tribunal considers that the evidence indicates that the applicant’s involvement with the organisation was significantly increased from 2012. The Tribunal accepts that the applicant was involved in the Minister’s visit in May 2012, but apart from this involvement, there is limited documentary evidence of the applicant’s involvement in Australia prior to that time. The applicant’s involvement in protests against the killing of MQM workers and extremist groups appear to all be from 2013. Additionally, the screen shots of the applicant’s social media involvement appear to date from 2013. The Tribunal considers, therefore, that the majority of the applicant’s activities were undertaken several years after his arrival in Australia in 2008, and the year before he lodged an application for protection in Australia. The Tribunal does not agree with the delegate’s assessment that the applicant undertook his involvement with the MQM for the sole purpose of strengthening his claims to be a refugee or the delegate’s comments which are apparently that some of the photographs are “staged”. Thus, the Tribunal accepts that the applicant has a level of commitment to the MQM. However, having considered all of the evidence, the Tribunal is drawn to the conclusion that the applicant sought to find a way to remain in Australia some years after he ceased his studies, and to that extent significantly increased his involvement with the MQM from 2012 with a view to subsequently obtaining evidence to support his application for protection in Australia.
47. The Tribunal does not accept the applicant’s explanation and considers it not credible that the applicant would go to see a lawyer if his financial situation was such that he could not pay the lawyers to assist him with a statement, and he could only provide an application at that time. The Tribunal considers that the applicant’s evidence, when asked at the hearing, was that he did not know why the submission took so long to be provided, yet it has since become that he did not have the financial means to provide a statement. In the context of the problematic evidence discussed above, the Tribunal is drawn to the conclusion that the applicant wished to have further time to obtain evidence between the lodgement of the application and the provision of the submission to the Department. The Tribunal considers that the fact that most of the evidence is dated in 2013 is indicative of this. The Tribunal considers that the evidence was not provided for several months after the lodgement of the application because the applicant required further time to create a profile for himself as someone who was strongly supportive of the MQM, rather than someone who had joined in 2008 but had limited involvement until 2012, shortly before he applied for protection.
The Tribunal turned to the applicant’s concerns in respect to being returned to Pakistan and relevantly found:
49. In considering this issue, the Tribunal finds on the basis of the above, that the applicant has not given truthful evidence in relation to his involvement with the MQM in Pakistan. The Tribunal accepts that the applicant is from the [M] ethnic group and his family supports the MQM. The Tribunal does not accept that the applicant’s uncle was a senior member of the MQM or that he left Pakistan for this reason. The Tribunal also does not accept that the applicant’s father’s Rent a Car business was used by “undercover cops” for their operations or that the Rent a Car business was used as a meeting place for political discussions by MQM persons. The Tribunal also does not accept that the applicant collected data for the “MQM Vigilance Committee” and does not accept the documents relating to his father’s purported kidnapping which were provided to the Department. The Tribunal does not accept that the applicant’s father or brother were kidnapped or threatened at any time by Sepah-e-Sahaba or any other extremist terrorist groups or that the applicant genuinely fears harm in Pakistan as a result of any limited involvement he had with the MQM when he joined in late 2007 until his departure to Australia approximately a year later. Nor does the Tribunal accept that the applicant’s father had to appear before the Taliban court in 2013 to plead for his or his family’s lives. Nor does the Tribunal accept that the applicant’s uncle had any significant role in the MQM such that this affected the applicant, his father or brother. The Tribunal has considered Mr [S] evidence that the applicant’s family is “politically active”. The Tribunal accepts that the applicant’s family supports the MQM and his father has a role in charitable organisations and supporting his community, but does not accept that his family had any particular political profile such that he or his family were threatened or harmed in Pakistan for this reason by any opposing groups or by extremist organisations. The Tribunal does not, therefore, accept the submission that the applicant is from a particular social group or family unit that opposes the Taliban and promotes the MQM.
50. The Tribunal is prepared to accept that the applicant may have had some involvement in the election campaign in 2008 in the form of distributing pamphlets, but does not accept it was to the extent he has claimed which was that he was organising meetings, special events or participating in door to door surveys. The applicant’s evidence indicates that he had joined the organisation in September 2007. The Tribunal considers it not credible that only a very short time later he was involved to such an extent, even having regard to his claims that he was trusted because of his uncle and his participation in social and political activities related to the MQM. The Tribunal has also found that the applicant’s evidence in relation to his involvement is not truthful and does not accept that he had anything other than a very limited role in the MQM or the election campaign prior to his departure from Australia. The Tribunal does not accept he was in charge of a polling station or that he had a role such that he was then considered by other political parties to be an “activist” as he has claimed. The Tribunal is not satisfied that the applicant’s involvement from September 2007 or early 2008 when he was a teenager was such that he had any particular profile and has found that his claims regarding his involvement with the MQM Vigilance Committee have been fabricated and has not accepted that he had any fear of harm when he left Pakistan. The Tribunal does not accept, therefore, that the applicant’s membership from September 2007 or his involvement in the elections in February 2008 are such that there is a real chance that he will suffer serious harm for this reason upon his return to Pakistan.
51. The Tribunal has accepted that the applicant has had a role in the MQM in Australia including in providing security for the Pakistani Minister and in protests in Canberra, as well as participating in social media, but has found that despite being in Australia since 2008, the majority of his involvement with the MQM in Australia dates from 2012, which was the year before he lodged the Protection visa application. The Tribunal does not accept that this involvement in Australia is such that the applicant has a particular political profile which will result in adverse attention from other political groups or extremist groups upon his return to Pakistan. The Tribunal does not accept, therefore, that the applicant’s involvement with the MQM in Australia will result in a real chance that he will suffer serious harm for this reason upon his return to Pakistan.
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59. The Tribunal does not accept that the applicant had any adverse political profile when he left Pakistan or that he has since gained an adverse political profile such that there is a real chance that he will suffer serious harm upon his return to Pakistan. The Tribunal does not accept that any association with his uncle or his father’s involvement in the community and charitable organisations will result in the applicant having an increased profile such that he will attract the attention of opposing groups or extremist organisations. The Tribunal has found above that whilst the applicant was a member of the MQM in Pakistan and Australia, his involvement was not as he has claimed. The Tribunal has instead found that he has significantly embellished and fabricated evidence to support his claims. Whilst the Tribunal accepts that the applicant may continue to have some involvement with the MQM upon his return, the Tribunal does not accept that he will have to modify or restrict his involvement because of a fear of harm. As discussed during the hearing, whilst accepting the reports of some MQM workers being harmed, the Tribunal is not satisfied that simply being an MQM worker or supporter is such that it gives rise to a real chance of serious harm. The Tribunal is not satisfied that the applicant’s previous involvement with the MQM in Pakistan and Australia, or any further involvement upon his return to Pakistan, gives rise to a real chance that he will suffer serious harm upon his return to Karachi.
60. The Tribunal accepts that there is considerable criminal and sectarian violence in Karachi, as well as several other areas in Pakistan and “organised crime and violent crime such as robbery and kidnapping are relatively common, exacerbated by the proliferation of licenced and un-licenced small arms”. The applicant has not claimed to have been the victim of generalised violence in the past whilst in Karachi. The Tribunal has considered the evidence provided regarding generalised violence in Karachi, but is satisfied that the chance of the applicant being a victim of such generalised violence is remote and, in any event, would not be inflicted upon him for a Convention reason. Additionally, although the Tribunal accepts that the applicant is a [M] and has regard to the independent evidence provided in relation to harm against [M] and decisions of the Refugee Review Tribunal, he has not made any claims to have suffered harm on this basis alone. Whilst there is evidence of discrimination against [M] in parts of Pakistan, the applicant’s evidence indicates that he has completed his education and his father has owned a business and has been employed for many years. The Tribunal is not satisfied that the applicant’s evidence indicates that he or his family have suffered harm amounting to persecution for reasons of their ethnicity/race as [M]. Furthermore, given that [M] comprise over 40 per cent of the population in Karachi and they remain the dominant ethnic group in that city, and the Tribunal is not satisfied that the applicant has any particular profile which may increase his risk, the Tribunal is not satisfied there the chance of the applicant suffering serious harm because he is a [M] is other than remote. The Tribunal is not satisfied, therefore, that the applicant has a well founded fear of persecution because he is a [M], whether this is considered as the applicant’s ethnicity/race or membership of a particular social group; as a result of his and his family’s support for the MQM; because he or his family holds a political opinion against the Taliban; and his membership of a family unit which engages in promoting the political ideals of the MQM(A).
61. Accordingly, the Tribunal is not satisfied that the applicant has a well founded fear of persecution, when considered individually or cumulatively, for reasons of his actual or imputed political opinion, ethnicity or membership of a particular social group or any other Convention reason if he returns to Pakistan now or in the reasonably foreseeable future.
The Tribunal turned to the issue of complementary protection and relevantly found para.62:
62. The Tribunal has not accepted that the applicant or his family has ever been harmed in Pakistan for the reasons he has claimed or that there is a real chance that the applicant would be harmed for a Convention reason upon his return to Pakistan. Nor has the Tribunal accepted that there is a real chance that the applicant would be harmed in Pakistan due to generalised sectarian, criminal or political violence. For the same reasons, the Tribunal is also not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan is a real risk that the applicant would suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant will suffer significant harm, which includes arbitrary deprivation of life, the death penalty torture, cruel or inhuman treatment or punishment, and degrading treatment of punishment, for any reason upon his return to Pakistan. Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, that there is a real risk that he will suffer significant harm.
63. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
64. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
65. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
It is clear that the Tribunal did address the issue raised by s.36(2)(aa) in its decision and for the reasons I have given, the findings of credit made by the Tribunal are ones that were open and do not lack an evident and intelligible justification. In these circumstances, the proceedings are clearly doomed to failure. I am clearly satisfied the proceedings have no reasonable prospect of success. I summarily dismiss the proceedings.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 31 March 2015
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Civil Procedure
Legal Concepts
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Judicial Review
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Procedural Fairness
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Jurisdiction
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Summary Judgment
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Costs
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Res Judicata
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