Ahmed, Salman v Minister for Immigration and Multicultural Affairs

[1998] FCA 1373

FEDERAL COURT OF AUSTRALIA

IMMIGRATION – Migration Act 1958 (Cth) – application to review Refugee Review Tribunal decision to refuse protection visa – whether fear of persecution for reason of political opinion or membership of a particular social group – whether fear well-founded

Migration Act 1958 (Cth), s 476

SALMAN AHMED v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NG 596 of 1998

BRANSON J
SYDNEY

30 OCTOBER 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 596  of   1998

BETWEEN:	SALMAN AHMED APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE(S):		BRANSON J
DATE OF ORDER:		30 OCTOBER 1998
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

1. The decision of the Refugee Review Tribunal be affirmed.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 596 of 1998

BETWEEN:	SALMAN AHMED APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE(S):	BRANSON J
DATE:	30 OCTOBER 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

This is an application for review of a decision of the Refugee Review Tribunal (“the RRT”), which affirmed the decision of the delegate of the Minister for Immigration and Multicultural Affairs to refuse to grant the applicant a protection visa under the Migration Act 1958 (Cth) (“the Act”).

To be entitled to a protection visa, an applicant must be a non-citizen in Australia to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (“the Refugees Convention”).

Australia has protection obligations under the Refugees Convention to any person who

“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence is unable or, owing to such fear, is unwilling to return to it.” (Art 1A(2) Refugees Convention)

BACKGROUND FACTS

The applicant is a citizen of Pakistan.  He arrived in Australia on 26 December 1997 using a fake South African passport in the name of Ali Hassan.  On 26 February 1998 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs.  On 31 March 1998 a delegate of the respondent refused to grant the applicant a protection visa and on 20 May 1998 the Refugee Review Tribunal (“the RRT”) affirmed that decision.

REASONS OF THE RRT

The RRT appears to have accepted the evidence of the applicant that he was born into a Mohajir family in Karachi in 1975.  The term “Mohajir” is a political concept which refers to those Muslims who migrated to Pakistan in 1947 from the north-central region of British India.  It appears that in 1978 a political organisation representing the interests of the Mohajirs was established and welded itself into a prominent political force which became known first as the Mohajir Qaumi Mahaz and then as the Muttehida Quami Movement (“the MQM”)(meaning the Mohajir National Movement).

The RRT accepted the evidence of the applicant, and that of a senior MQM official in Australia, that the applicant was a supporter and member of the MQM in Pakistan.  The RRT further accepted that the applicant was associated with a now deceased senior member of the MQM, that he was detained for five days in 1996 as a result of his membership of the MQM and his association with the now deceased person, that he was only released after payment of a bribe and that thereafter, until his departure from Pakistan at the instigation of his father, he lived away from his parents’ address.

The RRT noted that the MQM signed a coalition agreement in February 1997 resulting in its becoming the junior coalition partner in the Government of the Sindh Province, the applicant’s home province.  The RRT noted that a communique had been signed in London in April 1998 and that such communique –

“is the latest indication that the Government of Pakistan, and the majority party in Sindh, the PML, is [sic] acting to meet MQM demands that events which occurred prior to the 1997 election, when a different party was in power, are redressed.”

The RRT regarded the communique as “the latest indication that the Government of Pakistan is aware of its responsibility to protect the rights of MQM members.”  It did not accept that the state of Pakistan is unwilling or unable to protect members of the Mohajir community from violence perpetrated as a result of the struggle between two factions of the Mohajir community.  The RRT did not accept that the applicant has a well-founded fear of being arrested on fabricated charges should he return to Pakistan.

The RRT was satisfied that the applicant has a subjective fear of returning to Pakistan based on his experience at the hands of the Pakistan authorities in 1996.  Although it made no express finding in this regard, the RRT apparently accepted that such fear was a fear of persecution on a Convention ground – presumably either political opinion or membership of a particular social group, namely the Mohajir.  The RRT, however, was not satisfied that the applicant has a well-founded fear of persecution for a Convention reason should he return to Pakistan at the date of its decision or in the reasonably foreseeable future.  In reaching  this conclusion the RRT took into account published material available to it concerning the present situation in Pakistan.

CONSIDERATION

The applicant, who was unrepresented before this Court, but who was represented by an adviser from Refugee Advice and Casework Service (Australia) Inc before the RRT, gave the grounds of his application as follows:

“1.      Applicant’s tarnished personalised image.

2.Misunderstanding of M.Q.M International Secretariat London’s cited appreciative [indecipherable] cable regarding assessment of asylum seeker applicants on behalf of M.Q.M. (Mutterhida Qaumi Movement).

3.Strange emphasis on generalised environments/sources rather than applicant’s individual nature experiences.

4.Failure to assess proper authorisation, rights and discretions enjoyed by the M.Q.M. being a coalition partner in government.

5.Failure to anaylise [sic] the hardships faced by the M.Q.M. supporters in current scenario particularly in the face of atrocities proceeded by the law enforcement agencies including Rangers (an Army wing).”

The intended meaning of the first of the above grounds is not clear.  It may be intended to be a reference to the applicant’s publicly acknowledged membership of the MQM.  The RRT recognised that the applicant was a known supporter of the MQM and a known associate of a now deceased senior member of the MQM.  It noted, however, that the “MQM is a mass organisation and that according to the published evidence it held rallies in Karachi which have each attracted more than 100,000 members and supporters.”  In view of its conclusion that the Government of Pakistan is now aware of its responsibility to protect the rights of MQM members, the RRT was not satisfied that the applicant’s known association with the MQM was objectively sufficient to give rise to a well-founded fear of persecution.  That is, the RRT was not satisfied that there was a real chance that the applicant would face persecution because of his involvement with the MQM should he return to Pakistan. This was a conclusion which was open to the RRT to reach.  It is not open to the Court to interfere with it.

The RRT made only limited use of correspondence from the MQM’s International Secretariat in London.  That correspondence indicates that the MQM is concerned about the abuse of asylum systems by those claiming to be MQM members and that the MQM discouraged its members from leaving Pakistan.  The only use which the RRT made of the correspondence was to support its conclusion, not challenged by the applicant, that the applicant did not leave Pakistan at the behest of the MQM because the MQM believed that he was at greater risk than any other supporter or member of the MQM with a similar profile if he remained in Pakistan. The RRT made no error of law in the use which it made of the correspondence.

The remaining grounds relied upon by the applicant, and as expanded upon in written material provided by him to the Court, amount to an attempt to have this Court reconsider the merits of the applicant’s claim to be entitled to a protection visa. It is not within the jurisdiction of this Court to reconsider the merits of the applicant’s claim to be entitled to a protection visa. Nor is the Court entitled to take into account on this application evidence of events which have occurred in Pakistan since the date of the decision of the RRT. Should such events suggest that the applicant’s fear of persecution for a Convention reason in Pakistan is now well-founded, it may be appropriate for him to lodge a fresh application for a protection visa. I express no view on whether the evidence to which the applicant’s written material makes reference is capable of so suggesting.

The decision of the RRT will be affirmed.

I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson

Associate:

Dated:             30 October 1998

The Applicant appeared in person
Counsel for the Respondent:	R Beech-Jones
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	12 October 1998
Date of Judgment:	30 October 1998