Ahmed v Minister for Immigration and Multicultural Affairs
[1999] FCA 1412
•20 AUGUST 1999
FEDERAL COURT OF AUSTRALIA
Ahmed v Minister For Immigration & Multicultural Affairs [1999] FCA 1412
NADEEM AHMED, KHADIJA AHMED & HAMDAN NADEEM AHMED v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
N 480 of 1999WHITLAM J
20 AUGUST 1999
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 480 OF 1999
BETWEEN:
NADEEM AHMED
KHADIJA AHMED
HAMDAN NADEEM AHMED
ApplicantsAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RespondentJUDGE:
WHITLAM J
DATE OF ORDER:
20 AUGUST 1999
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicants 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
NEW SOUTH WALES DISTRICT REGISTRY
N 480 OF 1999
BETWEEN:
NADEEM AHMED
KHADIJA AHMED
HAMDAN NADEEM AHMED
ApplicantsAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
JUDGE:
WHITLAM J
DATE:
20 AUGUST 1999
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an application to review a decision of the Refugee Review Tribunal ("the Tribunal") given on 28 April 1999 affirming the decision made by a delegate of the respondent ("the Minister") not to grant protection visas to the applicants. The claim to be a refugee was that of the firstnamed applicant, who may conveniently be referred to as the applicant. (The other applicants are his wife and son. Their claims are, in effect, parasitic.)
The applicant is a Pakistani national. He is a Mohajir, a descendant of immigrants from India after Partition. Mohajirs comprise seventy per cent of the urban population in the province of Sindh, of which Karachi is the capital. The applicant is also a member of the Muttahida Qaumi Movement ("MQM"), a political party formed in the 1980s to represent the interests of Mohajirs. The subsequent course of events in Pakistan is outlined in the Tribunal's reasons for decision. This saw the breakaway from the MQM of the Haqiqi faction, which was initially supported by the government and the military.
Political opinion was the "reason" under the Refugees Convention definition relied on by the applicant. He claimed, on account of his involvement with the MQM, to fear persecution from two quarters, first, the government in the form of the police and the paramilitary Rangers, and, second, the Haqiqi faction. Before arriving in Australia, the applicant had lived outside Pakistan, in Dubai, for many years, and the Tribunal formed a very unfavourable view of his credibility. The Tribunal rejected his claims in respect of both sources.
Counsel for the applicant does not challenge the Tribunal's finding relating to fear of persecution by the authorities. However, so far as the Haqiqi faction is concerned, he submits that the Tribunal's decision involved an error of law under s 476(1)(e) of the Migration Act1958 ("the Act"). That error is said to be revealed in the Tribunal's statement (at p. 30):
"I therefore do not accept that the Applicant cannot expect effective protection from the Government of Pakistan if he experiences further harassment from the Haqiqi faction and I therefore do not consider that the Applicant has a well-founded fear of being persecuted if he returns to Pakistan on the basis of the conflict between the various factions of the MQM or the general level of political violence in Karachi."
Counsel for the applicant submits that in the circumstances a finding of "effective protection" (which is implicit in the Tribunal's statement) requires that there be "no real chance" that the authorities are unwilling or unable to provide protection to the applicant. He cites in support of this submission statements about "real chance" in the context of the suggested ineffectuality of state protection in Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 at 567 and Minister for Immigration and Multicultural Affairs v Prathapan (1998) 86 FCR 95 at 106. In the present case it is said that, in the key passage set out above, the Tribunal did not address the question whether there was no real chance that the governmental authorities were unwilling or unable to provide the applicant with protection from harassment by the Haqiqi faction.
Counsel for the Minister bluntly submits that the submission on behalf of the applicant misconceives the significance of effective protection under the Convention's definition. Here, he says, it is relevant to the question whether the applicant has a well-founded fear of persecution: A v Minister for Immigration and Multicultural Affairs (1999) 53 ALD 545 at 554. It is in that context that the "real chance" must be considered.
I think that the submission on behalf of the Minister is correct. The Tribunal's reasons for decision are replete with references to "real chance" in its assessment (commencing at p.25) of the existence of any objective basis for the fear of persecution claimed by the applicant.
Finally, counsel for the applicant submits that the Tribunal failed to make findings on two material questions of fact, namely whether his client had a well-founded fear of being persecuted as a result of harassment by the Haqiqi faction and, if so, whether he was, owing to such fear, unwilling to avail himself of the protection of Pakistan. In this way, it is said, the ground specified in s 476 (1)(a) of the Act is made out because the Tribunal did not observe the procedure required by s 430(1) of the Act. However, the Tribunal did record findings of fact on the first of those questions at pp 21, 24, 29 and 30 of its statement of reasons. In the light of those findings, the second question did not arise. This ground of challenge also fails.
Counsel for the applicant expressly denies reading the Tribunal's reasons with too fine an eye for error. I think that he is a little too coy. He has done the best he can for his client in arguing the points raised. As counsel for the Minister correctly submits, the applicant really wishes to challenge the merits of the Tribunal's decision. However, the statement of reasons discloses, in my opinion, no error of law.
The application will be dismissed with costs.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam. Associate:
Dated: 15 October 1999
Counsel for the applicant: BM Zipser Counsel for the respondent: JD Smith Solicitor for the respondent: Australian Government Solicitor Date of hearing: 20 August 1999 Date of judgment: 20 August 1999
3