Jafari v Minister for Immigration and Multicultural Affairs

[2000] FCA 373

FEDERAL COURT OF AUSTRALIA

Jafari v Minister for Immigration & Multicultural Affairs [2000] FCA 373

MIGRATION – protection visa – application for review of a decision of the Refugee Review Tribunal refusing grant – where application discloses no grounds – where submissions of applicant disclose no grounds within section 476(1) of the Migration Act 1958 (Cth)

Migration Act 1958 (Cth), ss 476(1)(g) & 476(4)

ALI ARSHAD JAFARI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 1474 OF 1999

EMMETT J
SYDNEY
24 MARCH 2000

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1474 OF 1999

BETWEEN:	ALI ARSHAD JAFARI Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	EMMETT J
DATE OF ORDER:	24 MARCH 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant 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 1474 OF 1999

BETWEEN:	ALI ARSHAD JAFARI Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	EMMETT J
DATE:	24 MARCH 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant is a citizen of Pakistan.  He arrived in Australia on 31 August 1999.  On 13 September 1999 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs.  On 20 September 1999 a delegate of the Minister refused to grant a protection visa and on 21 September 1999 the applicant applied to the Refugee Review Tribunal (‘the Tribunal’) for review of that decision.  On 20 December 1999 the Tribunal affirmed the decision not to grant a protection visa.  On 22 December 1999 the applicant lodged an application with this Court for an order of review of the decision of the Tribunal.  The application specifies no grounds at all but simply states that details will be sent at a later date.  No details have yet been received.  I will assume for present purposes that the application is competent, notwithstanding the total absence of any grounds.

2. On 18 February I directed the applicant to file any amended application intended to be relied on before 15 March 2000 and directed the applicant to file and serve written submissions five working days prior to the hearing date, which I then fixed for today. Some handwritten submissions were apparently sent to the Minister’s solicitors. However, I did not receive them until today. I have, however, had regard to those submissions. They do not outline any ground in section 476(1) of the Migration Act 1958 (Cth) (‘the Act’). Rather they take issue with factual findings made by the Tribunal. They do not, as I understand them, appear to suggest that there was no evidence upon which the Tribunal could have reached the conclusions that it did within the meaning of section 476(1)(g), as explained by section 476(4), of the Act.

3. I have considered the reasons of the Tribunal and its findings.  The Tribunal noted that the applicant had claimed to fear persecution at the hands of extremist Sunni Muslims for reasons of his faith as a Shia Muslim and as a member of a Shia organisation.  The Tribunal in its reasons indicated that it had considered the applicant's status as a Shia who had claimed to have been a leader of the Shia group in his area.  The Tribunal also considered the information concerning the nature of the sectarian violence in the applicant’s country to determine whether or not there is a real chance that he could face serious harm at the hands of the extremists for reasons of his religion or political opinion.  The Tribunal said that in considering the nature of any harm the applicant may face, the Tribunal had also taken into account protection that he may have through the state and the state’s role, if any, in the sectarian violence.  The Tribunal also said that it had considered whether or not the applicant could avail himself of protection in Pakistan by relocating. 

4. The Tribunal considered that there were a number of issues of concern in regard to the credibility of the applicant’s account of his circumstances.  The Tribunal considered that the applicant is a well educated person with a good level of the English language.  He is well travelled and understands the broad principles of the Refugees Convention, at least to the extent that it is based on protection from serious harm.  The Tribunal also noted that the applicant had been granted asylum on refugee grounds in South Africa before coming to Australia.  The Tribunal was sceptical concerning the applicant's explanation as to why he failed to state his claims more fully than he did in his original application for a protection visa and why he seemed to avoid answering questions from time to time posed by the Tribunal.  The Tribunal considered that it was probable that the applicant had embellished and exaggerated his claims.

5. The Tribunal made the following findings: 

   ·The applicant is of the Shia faith. 

   ·The Shia faith is a minority faith in Pakistan. 

   ·The applicant was an ordinary member of the student arm of the TNJP (Tehrik I Jafria Pakistan) at the age of 16. 

   ·The applicant’s father was both General Secretary of the Punjab Teachers Association until his death in 1994 and General Secretary of the Sheikhupura branch of the TNJP from 1990 to 1993. 

   ·The TNJP was formed in 1979 and the SSP (Sipah I Sahaba Pakistan) in 1984.  The applicant left Pakistan in 1998 before 20 July. 

   ·The applicant had been beaten on his way to school in 1996. 

   ·The applicant had been kidnapped and beaten in May 1998. 

   ·The bases for both the TNJP and the SSP are in the Punjab province. 

   ·The applicant lived and worked in Punjab until his departure from Pakistan in 1998.

   ·The state of Pakistan is not responsible for, nor complicit in, sectarian violence between Shia and Sunni Muslims. 

6. The applicant claimed that he had no confidence in the protection offered by the state of Pakistan and that he doubted that, as a member of a minority, he would be accorded justice since the majority of Pakistanis were of the Sunni faith.  The applicant gave examples where the authorities had acted.  In the first instance, protection sought was provided for a Muharram procession and stability was restored.  It is clear from the applicant’s own account that the protection was provided by the state in a timely manner and that the situation was not only stabilised but preventive measures were taken through the provision of a police escort for the procession. 

7. The second instance involved the murder of the president of the TNJP.  The Tribunal considered that it was apparent that the authorities did act and arrested a person who the applicant is convinced is guilty.  However, that person was wearing a mask for the purpose of concealing his identity.  The Tribunal found that the arrest was genuine, and that the person was arrested as a suspect but that, given the efforts to conceal his identity, there was insufficient evidence to continue to keep him in custody. 

8. The Tribunal considered that the applicant’s anecdotal accounts served to provide examples of the genuine efforts by the state of Pakistan over a considerable period and under different governments to bring an end to the sectarian violence and to bring to justice those responsible for illegal acts.  The Tribunal was satisfied that while the state of Pakistan has not been able to bring sectarian violence to an end, it is not out of control to such an extent that it could be said that the state is unable to protect a person in the position of the applicant. 

9. When it was put to the applicant that he could seek protection inside Pakistan by relocating to another province, his initial reaction was that he could not transfer as a teacher.  The Tribunal accepted that relocating would mean there would be certain difficulties.  The Tribunal was also aware that relocation would not be a solution if it was not reasonable to expect the applicant to relocate.  However, the applicant is a single man who has demonstrated his ability to establish himself in other locations and in other fields of work.  His move to South Africa demonstrated, according to the Tribunal, his skills to relocate and to find employment in an area unrelated to teaching.  The Tribunal found that the applicant could equally have employed those skills to relocate to Islamabad.  His fear of persecution was said to be based on a situation which is localised.  The applicant is not a national figure but merely a general secretary of a district branch of some 80 members. 

10. The Tribunal found that in all of the circumstances any risk of harm occurring in Islamabad is both remote and insubstantial and does not amount to a real chance.  The Tribunal therefore concluded that any fears the applicant may hold are not well founded.  The Tribunal also concluded that it would reasonable to expect the applicant to relocate.  In the circumstances the Tribunal was not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugee Convention. 

11. I perceive in the reasons, including those conclusions, no error or ground under section 476(1) of the Act. I consider that the application should be dismissed. Accordingly I order that the application be dismissed. I order the applicant to pay the respondent’s costs of the proceedings.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             7 April 2000

Counsel for the Applicant:	The applicant appeared in person assisted by an interpreter
Counsel for the Respondent:	Mr P Braham
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	24 March 2000
Date of Judgment:	24 March 2000