Ashraf, Syed Faisal v The Minister for Immigration and Multicultural Affairs

[1997] FCA 1256

FEDERAL COURT OF AUSTRALIA

MIGRATION - application for review of decision of Refugee Review Tribunal (“RRT”) that applicant is not a refugee - where RRT found that detention and mistreatment of the applicant amounted to persecution for a Convention reason - whether inconsistency in conclusions of RRT so as to amount to an error of law - whether evidence to support conclusion that applicant did not have a well-founded fear of persecution - whether evidence to support conclusion that applicant might reasonably relocate to another part of Pakistan

Migration Act 1958 (Cth)

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437, applied

Maqsood Ahmad v Minister for Immigration and Multicultural Affairs (unreported, 20 May 1997, Sundberg J), cited

SYED FAISAL ASHRAF v
THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
VG 184 OF 1997

TAMBERLIN J
MELBOURNE
14 NOVEMBER 1997

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 184  of   1997

BETWEEN:	SYED FAISAL ASHRAF APPLICANT
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	14 NOVEMBER 1997
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The application be dismissed.

1. The applicant pay the costs of the respondent.

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	VG 184 of 1997

BETWEEN:	SYED FAISAL ASHRAF APPLICANT
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	14 NOVEMBER 1997
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

Introduction

This is an application for review of a “judicially reviewable decision” under s 476 of the Migration Act 1958 (Cth) (“the Act”), with respect to a decision of the Refugee Review Tribunal (“the Tribunal”), constituted by Mr Calabro, given on 26 March 1997.

The Tribunal was not satisfied that the applicant is a refugee and it affirmed the decision below not to grant a protection visa.

Essentially, four issues were argued before me.  First, that the Tribunal decision was infected because having found that the one month detention and mistreatment of the applicant in January 1996 amounted to persecution for a Convention reason, the reasons then suggest that the applicant may have been detained purely for the purpose of extorting a bribe.  Second, that having found that the applicant had been detained and mistreated for a Convention reason in January 1996 there was no evidence to support a conclusion that as at 26 March 1997, only fourteen months later, the applicant did not continue to entertain a well-founded fear of persecution if returned to Pakistan.  Third, there was no evidence to support the Tribunal’s conclusion that there was no real chance of persecution for a Convention reason if the applicant returned and relocated in another part of Pakistan.  Fourth, that the Tribunal decision involved an exercise of discretionary power in accordance with the rule of policy without regard to the merits of the particular case.

Background

Briefly the background facts are that the applicant is a national of Pakistan who arrived in Australia on 13 July 1996 at the age of nineteen.  He applied to the Department of Immigration and Multicultural Affairs for a Protection Visa on 5 August 1996.  The Minister’s delegate decided to reject the application on 28 November 1996 and there was an appeal to the Tribunal which heard the matter on 14 March 1997.

The applicant told the Tribunal that his main claim for seeking protection was a fear of persecution based on his political opinion arising from his membership of the Mohajir Quami Movement (“MQM”), which he joined in 1992 after matriculating.  His evidence was that he joined the MQM because his cousin was very active in and his parents supported, the movement.  Members of the MQM have always had problems from other parties but the main dangers encountered by the applicant arose during and after August 1995.

In mid-January 1996 the police raided his uncle’s home in the early morning and arrested the applicant.  The Tribunal accepted that he was detained and mistreated for one month.  He was released after payment of a bribe.  The Tribunal found that his detention and mistreatment amounted to persecution on Convention grounds, which it specified as the applicant’s race and political opinion.

The police said they would release the applicant if his family paid a bribe of 100,000 rupees.  There were then negotiations with the family and this amount was reduced to 50,000 rupees.  The applicant was subsequently released after payment of this amount.  After release, the applicant stayed at his home for ten or eleven days and was treated there because his mother was frightened and did not want to take him to hospital.  He was weak, had lost hair and had black spots around his eyes.  The doctor who visited him at home treated him with tablets and his mother looked after him.

After eleven days his mother took him to Sialkot in the Punjab by train and he did not experience any problems from the authorities while travelling to that area.  The applicant stayed with an uncle for ten weeks.  The uncle was a doctor.  During this time he had complete rest and did not go out.  The family decided that the applicant should leave the country.  His uncle then organised his visa to Australia from the Punjab.  He then returned to Karachi by train with his mother and tried to obtain visas to three or four other places including Bangladesh.

The Tribunal found the applicant to be generally credible, but noted that he kept changing his evidence in some significant respects. The Tribunal noted that the applicant had not experienced any difficulties in leaving Karachi by train or returning to Karachi before coming to Australia.

I now turn to the specific matters argued before me.

First matter - economic reason for detention and release

In the Tribunal’s reasons the decision-maker said:

“The Tribunal finds that the Applicant was detained and mistreated for one month.  He was released after the payment of a bribe.  The Tribunal finds that this detention and mistreatment amounted to persecution for a Convention ground, the Applicant’s race or political opinion.  The Tribunal notes that the police in Karachi have resorted to detaining people purely for the reason that they would extort monies from persons and this was not done for any Convention ground.  The Applicant’s evidence suggests that their motivation was economic.  The Applicant was released immediately after the payment of a bribe.” (Emphasis added)

The applicant submits that this paragraph discloses an error of law because it manifests an inconsistency in finding that the detention and mistreatment amounted to persecution for a Convention ground, but continues by strongly suggesting that an underlying reason for the detention was to extract a bribe from the applicant and his family in order to secure his release. This inconsistency, it is said, demonstrates an error of law which has infected the Tribunal’s decision when properly read as a whole.  The Tribunal having made a positive finding of Convention persecution, then, in effect, diluted it by subsequent comments.

The passage quoted is to be found immediately after a paragraph in which the Tribunal accepts that the applicant was detained by the police and was released once his family paid a bribe of 50,000 rupees after negotiation with the police who initially wanted 100,000 rupees.  The Tribunal rejected the applicant’s claim that the detention was on the basis that the applicant was to be charged with murder.

The applicant says, correctly in my view, that the finding that detention and mistreatment amounted to persecution for a Convention ground was of central importance in a proper consideration of the question whether the applicant as at 26 March 1997 had a well-founded fear of persecution.  It is against this finding of persecution in January 1996 that the Tribunal was bound to determine the question whether fourteen months later, in March 1997, there was a well-founded fear of persecution.

The question is whether on a fair and reasonable reading of the paragraph in question, in the context of the reasons for decision as a whole, there is an inconsistency in the conclusions of the Tribunal such as would amount to an error of law.  The question is largely one of interpretation.  In approaching the question it is, of course, necessary to bear in mind the observations of the High Court which caution that parts of a decision should not be taken out of context and must be considered in the light of the decision as a whole, and that the reviewing Court must not seek out error, but rather seek to fairly examine the substance of the reasoning below: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1997) 185 CLR 259.

In my view, on a fair and reasonable reading of the paragraph, the Tribunal has made a firm finding that the detention and mistreatment of the applicant amounted to persecution for a Convention reason.  Notwithstanding this finding, the Tribunal observed, but made no finding, that the circumstances surrounding the detention suggested that economic considerations, namely the extortion of a bribe, played an important role in his detention and release.  So much is indicated by the circumstance that the applicant was released immediately after payment of a bribe.  In my view, the remarks in the last three sentences of the paragraph did not play an important role in the views of the Tribunal.  They are not referred to subsequently.  There is no specific finding in relation to economic motivation or the attribution of any consequence to economic motivation.  For these reasons, I consider that the remarks concerning economic motivation did not disclose any error of law or inconsistency in approach by the Tribunal and did not affect the ultimate conclusion reached by the Tribunal.  I therefore do not accept the submission made by the applicant in relation to this question.

Second matter - lack of evidence

There are two aspects to this submission.  The first is that the applicant says that there was no evidence that the police in Karachi have resorted to detaining people generally in order to extort bribes.  Apart from this assertion, I was not taken to any evidence with a view to demonstrating that this was the case.  Nor did Counsel for the Minister refer me to any instances of the police in Karachi detaining people for extortion purposes.  However, even in the absence of such evidence I do not think the lack of such evidence is important because the emphasis placed in the reasons for decision, as evident from the above quotation, is that the objective facts strongly suggested that the motivation was economic.  The immediate release of the applicant after payment supports this inference.  In any event I do not think that the reasoning as to detention for bribery played any significant part in the ultimate conclusion.

The second aspect in relation to the evidence is that, the applicant submits, there was no evidence to support the conclusion reached that in March 1997 the applicant did not have a well-founded fear of persecution.

The basis on which the Tribunal proceeded was to examine the country information in the form of United Nations research documents, Australian intelligence material, publications of Amnesty International, newspaper reports and other international intelligence.  After considering in detail the country specific information as to the political situation in Pakistan, the Tribunal concluded that in view of the changed circumstances, including in particular a change in political power in the February 1997 elections, the MQM found itself, during a time of diminishing civil strife, in a much more powerful position politically than had been the case for many years.  Accordingly, the Tribunal found that the prospect of the applicant being persecuted due to his support of the MQM was remote.

In my view there was ample material available to the Tribunal, to which it referred in its decision, to enable it to reach the conclusion that any danger in Karachi had subsided to a point where there was no real chance of persecution for a Convention reason should the applicant be returned to Pakistan.

The Tribunal, of course is entitled to examine the intelligence and information relating to the political and social situation in Pakistan and in my view, the decision discloses a careful and detailed consideration of the political situation over the last decade.

I do not consider that there is any substance to the submission that there was no evidence which would warrant the conclusions which the Tribunal reached as to the changed political circumstances in Karachi and Pakistan generally.

Third matter - relocation

The Tribunal said that it was required to assess the risk to the applicant in his country of nationality as a whole, rather than simply in relation to Karachi where there had been intense conflict.  The reasons note that the situation elsewhere in Pakistan had been more settled and that an earlier concern, that violence directed at MQM workers in Karachi may have become rife in other major centres, was not borne out.  The reasons had regard to educational qualifications of the applicant, who had completed his matriculation; his ability to communicate in two languages, and his age.  The Tribunal found that he did not have a high profile as a MQM activist that would excite the interest of the authorities, especially outside Karachi.  In particular the Tribunal found that if he feared for his safety in Karachi or elsewhere in Sindh, it would not be unreasonable to expect the applicant to relocate to another part of Pakistan, for example, the Punjab, where he has relatives and where country information has long indicated there is no real chance of harm for a Convention reason.

The applicant challenges these findings and contends, in substance, that his position should be evaluated as regards the situation in Karachi.  It is noteworthy that the Tribunal concluded that there was considerable evidence, to which it had referred, to show that there had been a marked decrease in the violence in Karachi, and that when this was considered in the light of the change in political control as a result of the elections, it indicated to the Tribunal that there was no real chance the applicant would face persecution.

It is not necessary for the Tribunal to limit its consideration as to the chance of persecution by reference to a particular city or area in which persecution may take place.  The relevant touchstone was stated in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 436. In that case, Black CJ, after referring to the humanitarian aims of the Convention and the need for a broad liberal approach to determining the question of persecution, said:

“... the delegate correctly went on to ask not merely whether the appellant could relocate to another area of India but whether he could reasonably be expected to do so.

This further question is an important one because notwithstanding that real protection from persecution may be available elsewhere within the country of nationality, a person’s fear of persecution in relation to that country will remain well-founded with respect to the country as a whole if, as a practical matter, the part of the country in which protection is available is not reasonably accessible to that person.  In the context of refugee law the practical realities facing a person who claims to be a refugee must be carefully considered.”

It seems to me that this test was applied by the Tribunal when it expressed the view that it would not be “unreasonable” to expect the applicant to relocate to another part of Pakistan, for example the Punjab, where he has relatives and where country information indicated there was no real chance of harm.

The question was discussed in some detail by Sundberg J in Maqsood Ahmad v Minister for Immigration and Multicultural Affairs (unreported, 20 May 1997).  In that case the applicant was a Pakistani national, aged 48, who arrived in Australia in September 1995 on a visitor’s visa.  At page 6 Sundberg J referred to the remarks of Black CJ in Randhawa, quoted above, and said that the question was whether an applicant could reasonably be expected to relocate to another part of his country.  His Honour concluded that the reasons of the Tribunal showed that it had considered the reasonableness of relocation, especially having regard to the period during which the applicant had lived in the area; the fact that his wife and children lived there, and that his business affairs were centred in that area before moving to Karachi.

In the present case, in relation to relocation, the Tribunal noted that the applicant had relatives in the Punjab, and that he had, after release from detention stayed at the home of his uncle for over two months and did not experience any difficulties while staying there.  It is correct to note, as pointed on behalf of the applicant, that upon his move to the Punjab, he was resting and did not go out and that his family while he was there decided that he should leave the country.  Nevertheless, I think there was sufficient evidence on which it was open to the Tribunal to conclude that the applicant might reasonably relocate to the Punjab where there was no real chance of harm for a Convention reason.

Fourth matter - application of policy

The applicant submits that the reasons of the Tribunal indicate that it had simply applied the general rule or policy without regard to the particular circumstances of the applicant.  When asked to formulate the policy which it was said the Tribunal applied Counsel for the applicant had considerable difficulty.  This is understandable because there is no indication anywhere in the decision that any rule of thumb, policy, or general formula was applied or that the Tribunal did not consider the individual circumstances of this particular applicant.

I therefore do not accept the submissions of the applicant on this point.

Conclusion

I am not satisfied that the applicant has demonstrated any error of law in the Tribunal’s reasons for decision.  Essentially, the decision of the Tribunal turned on the fact that, although there had been persecution for a Convention reason in early 1996, the political circumstances had changed dramatically, largely because of the election which took place in February 1997. Consequently there was a greatly diminished risk of persecution to the extent that it was considered by the Tribunal to be “remote” as at March 1997.  In addition, it was not unreasonable for the Tribunal to adopt the view, on the evidence, that there were other areas in Pakistan to which the applicant might reasonably be expected to go where there would not be even a remote chance of persecution.

The application should therefore be dismissed with costs.

I certify that this and the preceding  eight (8) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin

Associate:

Dated:            14 November 1997

Solicitor for the Applicant:	Nevett Ford
Counsel for the Respondent:	Mr P J Booth
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	11 November 1997
Date of Judgment:	14 November 1997