DZAEK v Minister for Immigration

[2016] FCCA 1824

FEDERAL CIRCUIT COURT OF AUSTRALIA

DZAEK & ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1824

Catchwords:
MIGRATION – Refugee applications – whether well-founded fear of harm from religious extremists in Pakistan because of extended stay in Australia, attendance at school and female sex.

Legislation:

Migration Act 1958 (Cth), s.36

First Applicant: DZAEK

Second Applicant: DZAEL

Third Applicant: DZAEM

Fourth Applicant: DZAEN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: DNG 36 of 2015

Judgment of: Judge Young

Hearing date: 17 September 2015

Date of Last Submission: 17 September 2015

Delivered at: Adelaide

Delivered on: 19 July 2016

REPRESENTATION

The First Applicant appeared in person on behalf of all applicants

Counsel for the Respondents: Mr Brown

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application filed 18 June 2015 be dismissed.

2. The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNG 36 of 2015

DZAEK

First Applicant

DZAEL

Second Applicant

DZAEM

Third Applicant

DZAEN

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision by the Administrative Appeals Tribunal to reject applications for protection visas for a family of four who are citizens of Pakistan. The first applicant is aged 35 years, the second applicant, his wife, is aged 33 years and the third and fourth applicants, their children, a son and daughter, are aged 9 years and 6 years respectively. Both children were born in Australia and have lived here all their lives.

2. The first applicant arrived in Australia as a student in 2005. He returned to Pakistan and brought his wife to Australia in 2006. The first applicant’s second application for a student visa was refused in September 2010. After an appeal to the Migration Review Tribunal this application was remitted to the Department in August 2012. The application was refused in November 2012. A further appeal to the Migration Review Tribunal was unsuccessful in December 2012.

3. The applicants applied for protection visas in November 2012. These were refused by the delegate in August 2013. The applicants appealed to the Refugee Review Tribunal in September 2013. The delegate’s decision was affirmed in July 2014. The applicants appealed the decision to the Federal Circuit Court which remitted the matter by consent to the Refugee Review Tribunal for reconsideration in February 2015. The applications were rejected in May 2015. The applicants applied to this court for judicial review in June 2015 and the application was heard in September 2015.

4. The first applicant has been employed in Darwin and his children attend a local primary school.

5. The applicants made various claims to the delegate. The first applicant claimed that he and his family had a well-founded fear of persecution in Pakistan or that there was a real risk that they would suffer significant harm if they were to return because of his occupation as a social worker, the children’s attendance at a Christian and/or Western schools, the family’s extended residence in Australia and imputed association with Western values and culture, the sex of the female applicants in a country where the treatment of women and girls is very poor, including violent attacks on girls’ schools, and his marriage to his wife which was said to have transgressed certain customary norms. They also raised a claim of lack of effective state protection in the first applicant’s home city of Peshawar, in particular, and Pakistan in general and claimed that internal relocation in Pakistan was not reasonable or practicable.

6. The delegate made adverse findings about the first applicant’s credibility arising from his failure to provide frank information about his criminal record. In 2010 he was found guilty of obtaining property by deception and without conviction fined $1,000 and ordered to pay compensation of $9,600. In 2012 he was charged with 20 counts of theft and 6 counts of obtaining property by deception. He did not appear to face these charges and a warrant of apprehension was issued[1]. The delegate found that the first applicant provided deliberately misleading information about these matters. The delegate also referred to information from the Northern Territory Government that the first applicant had provided a fraudulent IELTS document in November 2012. The delegate reached no conclusion about that document because of inadequate information.

   [1] Court book p 324.

7. The delegate rejected the applicants’ claims but found there was a lack of effective state protection in Peshawar. The delegate found that it was reasonable and practicable for the applicants to relocate within Pakistan to a large city such as Rawalpindi or Islamabad.

8. The Tribunal reached the same conclusion as the delegate about the first applicant’s lack of credibility but noted that this, in itself, was not fatal to the applicants’ claims. While generally refusing to accept the first applicant’s uncorroborated claims the Tribunal recognised that it was necessary to properly examine the applicants’ claims to the extent they were based on reliable or independent information.

9. The applicants raised the same claims before the Tribunal and some additional claims. The first applicant claimed his children were “non-Urdu speaking” and spoke only English and would suffer hardship if returned to Pakistan. He said they were at increased risk of harm in consequence. The first applicant also claimed that he and his family would suffer destitution if returned to Pakistan. He said that his father, who was said to be a well-known dentist, refused to provide any support for his family if the applicants returned to Pakistan. The Tribunal rejected these claims.

10. The applicants also claimed to be at risk from terrorist attacks, generalised crime and poverty in Pakistan. The Tribunal rejected these claims and found that the risk to the applicants from terrorist attacks in large cities such as Rawalpindi or Islamabad was remote, that criminal violence in Pakistan was not related to a convention ground and that, while there was widespread poverty in Pakistan, there was no reason to believe that the first applicant, in particular, who had been employed in Pakistan and was a member of a relatively wealthy family would not be able to provide for his family.

11. The first applicant also claimed that his son suffered from a speech problem or impediment. He said, in addition, that this would make it difficult for his son to learn Urdu, the national language of Pakistan, and Pashto, the father’s mother tongue and that speech therapists or speech pathologists were not available in Pakistan. The Tribunal rejected this claim noting that there was no evidence provided to support the claims about the son’s speech impediment. The Tribunal noted that the applicants’ representative had undertaken to provide documents in support of the claim but had not done so[2].

    [2] Tribunal reasons [79], [81].

12. The grounds of review are as follows:

    1. That the decision of the Second Respondent was affected by jurisdictional error in that the Second Respondent asked itself the wrong question when determining the claims of the Fourth Applicant.

    Particulars

    (a)the First Applicant raised claims on behalf of the Fourth Applicant that required the Second Respondent to determine:

    (i)for the purposes of section 36 (2) (a) of the Migration Act 1958 (Cth) (the Migration Act), did the Fourth Applicant have a well-founded fear of being persecuted upon her return to Peshawar for reasons of her membership of the particular social group of girls who attend, or have attended, a school and/or a western school?

    (ii)for the purposes of section 36(2)(aa) of the Migration Act, where there is substantial grounds for believing that, as a necessary and foreseeable consequence of the Fourth Applicant being removed from Australia to Pakistan, there is (sic) a real risk that the Fourth Applicant will suffer significant harm?

    (b)The Second Respondent failed to consider the Fourth Applicant’s claim and instead asked itself two incorrect questions:

    (i)Whether there was a real chance that either of the First Applicants two children will be abducted, killed or otherwise persecuted whilst attending school in Peshawar;

    (ii)Whether there were substantial grounds for believing that as a necessary and foreseeable consequence of the Second Applicant and Fourth Applicant being removed to Pakistan, that there was a real risk that they will suffer significant harm as a result of their gender.

13. The applicants raised a further claim in their outline of submissions that was not included in the grounds of review. I take this to be a claim that the Tribunal failed to properly consider the third applicant’s claim about his “Mental/Language Disorders and other health issues”. In general terms, this relates to the claim by the first applicant that his son suffered from a speech impediment or disorder that necessitated specialist therapeutic intervention. The applicants’ written submissions claim that the Tribunal was provided with “available medical reports from schools, doctor and specialist”. No such medical reports were referred to by the Tribunal (and there are no such documents in the Court book) but it did note that there was no evidence of an assessment of the third applicant by a speech therapist. It notes that the applicants’ representative undertook to provide documents about this issue[3] but went on to say that it had not been provided with any evidence that the third applicant suffered from a speech impediment or any learning difficulties[4].  The Tribunal concluded, in any event, that even if the third applicant does have some such difficulties it did not accept that the child would be unable to access speech therapists or special teachers in Pakistan.

    [3] Tribunal reasons [79].

    [4] Ibid, [81].

14. The submissions also claimed that the third applicant would have difficulty learning Urdu and Pashto. The Tribunal accepted that the children speak English with Australian accents but did not accept the claim of the first applicant that the children spoke only English and had little Urdu. The Tribunal noted that the first and second applicants spoke Urdu to each other and that the application form completed by the first applicant stated that the children spoke Urdu. The Tribunal observed that the children were very young and should be able to learn the language[5]. I am unable to see any relevant error in the Tribunal’s consideration of this issue.

    [5] Ibid, [51] – [53].

15. I turn to the grounds set out in the application for review. The applicants’ claims in so far as they specifically concerned the fourth applicant were that she was at risk from Taliban or related extremist groups because of her education received in Australia as well as attendance at school in Pakistan and, in particular, because she may attend English medium schools or schools offering Western style education[6]. It was claimed that the child applicants would be returning to Pakistan after many years of residing in Australia and would be likely to have absorbed Western cultural traits such as attire and accents. It was claimed that they would display Western values as the result of many years of education in Australia.  It was submitted to the Tribunal that the fourth applicant was a member of particular social groups, including children who attend, or have attended schools, in particular girls who attend schools in Pakistan, and people returning to Pakistan from Western countries after an extended absence and otherwise associated with Western cultural values[7]. It was also submitted that there was a lack of effective state protection in Pakistan.

    [6] Applicants’ written submissions to Tribunal, Court book pp 299, 300.

    [7] Tribunal reasons, [19], [20].

16. The Tribunal considered the applicants’ claims to have a well-founded fear of harm should they return to Peshawar, particularly the claim that because the children attended schools in Australia, because the family had become Westernised through an extensive period of time in Australia and would be identified as such and because the second and fourth applicants were female they would be at risk of harm inflicted by the terrorist group Lashkar-e-Islami[8]. The Tribunal appeared to accept that there was substance in these claims because there had been a series of attacks, including attacks on schools, in the Kybher Pakhtunkhwa province, of which Peshawar, the place of origin of the children’s father, is the capital and the nearby Federally Administered Tribal Areas (FATA). The Tribunal accepted that the applicants have a genuine fear of returning to Peshawar and that this fear is particularly acute given the attacks on schools, particularly girls’ schools, by terrorists professing an ultra-orthodox religious agenda[9].

    [8] Ibid., [35].

    [9] Ibid., [36].

17. The Tribunal accepted that there were risks for the applicants, particularly for the children who would need to attend school. The Tribunal, however, considered it was unnecessary to make definite findings about whether the applicants faced a real risk of significant harm on the stated grounds in Peshawar because it was reasonable for them to relocate to another part of Pakistan[10].

    [10] Ibid., [37].

18. The Tribunal thus posed to itself the questions at 1(a)(i) and (ii) of the grounds of review but, after consideration of the matter, concluded it was not necessary to give a definite answer to (a)(i) because it was reasonable for the applicants to relocate away from Peshawar to some other part of Pakistan such as Rawalpindi or Islamabad. Consideration to the question in (a)(ii) was given in the overall consideration of the applicants’ complimentary protection claims.

19. The Tribunal did not, as the applicants assert, limit itself to consideration of whether there was a real chance that the children would be abducted, killed or otherwise persecuted while attending school in Peshawar although it was relevant to consider the applicants’ claims that the children were at risk in attending school in Peshawar[11]. The Tribunal accepted evidence of terrorist attacks against schools in Khyber Pakhtunkhwa and FATA. It also accepted that extremists had attacked schools which were perceived as having a connection with Western culture and had also targeted schools attended by both girls and boys because they opposed girls’ attendance at school but concluded that attacks on schools have largely been restricted to those areas. It did not, as the applicants imply, misconstrue the claims to be simply claims that the children were at risk at school. It referred to the dangers from school attacks in Peshawar and considered that there was a risk of harm to the children which justified the parents’ fear of returning there.

    [11] The failure of the previous Tribunal to consider whether there was a real chance that the fourth applicant would be persecuted or suffer serious harm by reason of membership of a particular social group, namely girls who attend school in Peshawar, was the reason for the consent order quashing the previous determination. See Court book p 280.

20. The Tribunal considered the entirety of the applicants’ claims in the context of internal relocation in Pakistan to a large city such as Rawalpindi or Islamabad.

21. The Tribunal considered these claims in two parts: first, the risks in attending English medium or girls’ schools elsewhere in Pakistan and, secondly, the risks to the family, including the children, from their extended stay in Australia, perceived Westernisation, and the attendance of the third applicant for a short time at a Christian school.

22. The applicants asserted that attacks against girls attending school and English medium schools were widespread in Pakistan. The Tribunal found there was very limited evidence of attacks on schools elsewhere in Pakistan[12]. While accepting that the children would go to English medium schools, it found that there is no evidence of attacks against girls’ schools or English medium schools elsewhere in Pakistan[13]. The Tribunal was not satisfied that the third and fourth applicants would suffer serious harm as a result of their membership of a particular social group of children who attend or have attended school in Pakistan, girls who attend school in Pakistan or any other similar connotation of particular social group[14].

    [12] Ibid., [45].

    [13] Ibid., [48].

    [14] Ibid., [48].

23. The applicants’ claims relating to the risk of harm to the family, including the children, from their extended stay in Australia, perceived Westernisation, and the attendance of the third applicant for a short time at a Christian school were dealt with at paragraphs [49] to [61]. The Tribunal, in summary, found that there was considerable Western influence in Pakistan, particularly in large urban areas such as Rawalpindi and Islamabad and that there are many Pakistanis who have relatives living in Western countries and many who have lived abroad. The Tribunal referred to Department of Foreign Affairs and Trade advice that there was no evidence that such individuals suffer discrimination or violence because they have lived in Western countries and that such large urban centres are home to mixed ethnic and religious communities and offer greater opportunities for employment, access to services and a higher level of state protection.

24. The Tribunal also considered the claims that the female applicants would be at particular risk of harm because of their sex. The Tribunal accepted that the status of women in Pakistan is poor and that there is violence and discrimination against women in Pakistan but did not accept that the second applicant or the fourth applicant had any particular vulnerability to harm from the Taliban or other extremist groups and did not accept that if they chose to wear Western dress that they would be subjected to harm for that reason. It found that Western influence was pervasive in Pakistan, particularly in large urban centres, and did not accept that there was a real chance that the female applicants would be persecuted for reasons of their membership of the particular social group of women and girls in Pakistan or their adoption of Western culture or dress in places such as Islamabad or Rawalpindi.

25. In summary, the Tribunal addressed the claims relating to Peshawar but did not find it necessary to definitively answer them because it found it was reasonable for the applicants to relocate within Pakistan. The Tribunal addressed the complimentary protection claims relating to the fourth applicant, a school age girl, arising from her sex and life in Australia and found there was no real risk of harm to her if her family relocated within Pakistan. The two questions said to have been incorrectly asked by the Tribunal were, as to (b)(i), relevant in considering the risks to the applicants if they returned to Peshawar and, as to (b)(ii), necessary for the Tribunal to consider in assessing the claims of the second and fourth applicants as females.

26. I do not find any jurisdictional error in the Tribunal’s consideration of the claims and dismiss the application with costs.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Young

Date:         19 July 2016