Kahloo, Mohammed Aslam v Minister for Immigration & Multicultural Affairs

[1997] FCA 1430

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 353   of   1997

BETWEEN:	MOHAMMED ASLAM KAHLOO APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
CORAM:	DAVIES J
DATE OF ORDER:	1 DECEMBER 1997
WHERE MADE:	SYDNEY

MINUTES OF ORDER

THE COURT ORDERS THAT:

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 353  of 1997

BETWEEN:	MOHAMMED ASLAM KAHLOO APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

CORAM:	DAVIES J
DATE:	1 DECEMBER 1997
PLACE:	SYDNEY

REASONS FOR JUDGMENT

This is an appeal from a decision of the Refugee Review Tribunal. The proceedings are brought under s 476(1)(e) of the Migration Act 1958 (Cth). The principal point put by counsel for the applicant is that the reasons of the member of the Tribunal were somewhat brief and that no specific findings were made in relation to matters such as fear and whether the fear was a well-founded fear of persecution for political opinion or religious reasons.

However, the reasons can, I think, be read having regard to the intent and operation of the Convention.  Article 1A(2) of the Refugee Convention defines a refugee as 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." (emphasis added)

Hathaway's The Law of Refugee Status expresses this article as one which is intended to protect a person who is outside his homeland due to a fear of persecution on the specified grounds and where the government of the homeland either contributes to that fear or is unable to provide protection against the persecution which occurs.  Hathaway, at 124, says:

"Not all persons who have left their country because of risk to basic human rights are refugees.  As noted in the introduction to this chapter, refugee law is designed to interpose the protection of the international community only in situations where there is no reasonable expectation that adequate national protection of core human rights will be forthcoming.  Refugee law is therefore "substitute protection" in the sense that it is a response to disenfranchisement from the usual benefits of nationality.  As Guy Goodwin-Gill puts it, `... the degree of protection normally to be expected of the government is either lacking or denied'."

As that passage indicates, the Convention looks primarily to the circumstance where the governing authorities of the homeland persecute inhabitants in that country on the basis of their race, religion, nationality, membership of a social group or their political opinion, or fail to provide protection against such persecution which may be carried out by others.  It is because protection is not afforded by those who are in control of the country that the protection of another country is given to a person who is so persecuted.  It is for that reason, in determining applications for refugee status, that decision makers almost invariably look at the way the governing authorities treat persons in their country:  whether the courts of the country are independent; whether protection is given to people who are improperly dealt with and so on. 

It is for that reason that a number of applications for refugee status fail, notwithstanding that the applicants have left their homeland because of well-founded fear of persecution.  In two particular areas these problems arise most frequently.  One is where a dispute exists over ownership of property.  Very often one land owner leaves the country fearing for his life because of the actions of another.  The other is that of domestic violence.  Such people leave their homeland fearing the violence to which they may be there subjected.  Ordinarily such claims fail because the disputes are personal disputes arising out of either private rights or personal circumstances.  They are not disputes entailing persecution by governing authorities for a Convention reason or any failure by governing authorities to protect persons within the country from persecution for a Convention reason.

In the present case, the applicant, Mohammed Aslam Kahloo, who is a citizen of Pakistan, lodged an application which included the following:

"Why did you leave that country?

I have a family trouble with another family because of that a lot of blood shed had between both family because of that a no's of my member has been killed.  When I was young my brother was admitted in hospital and the other family poisoned him.  We tried a lot to examine the body of my brother but we could not get justice because the other family is very strong and have a political power.

As you know in Pakistan the educational percentage is very low.  I was the only member of my family well educated.  I had a degree of Bachular of Arts from Punjab University and then I was going to Punjab Law College for law degree but my enemy did not like it and they attempt to kill me.

When I get to know them plan I felt very unsafe, scared and in danger and I could not continue my education.

Once they tried to kill me but I was lucky to be alive.  Since that I was very scared and unsafe.  After all this happend I think better to leave the country.

What do you fear may happen to you if you go back to that country?

I believed if I go back to my country I will be murdered.  I am belong to a Shia ethnic group and I was a member of youth organisation of Distik and now I informed by one of my friend during the period of out side of my country because the other group have political power and they changed it to a religious violence.

Because of this a large of people from other Sunni group is also against me and now I am in more dangerous position to go back.

Who do you think may harm/mistreat you if you go back?

The ethnics group of Sunni, my family enemy and authorities of police & politics.

Why do you think they will harm/mistreat you if you go back?

I believe because they already tried to kill me and they warned me if I go back they kill me as before they did kill my brother in past and blood shed in family.

I was a member of youth organisation of Shia and I [made speeches a number] of times which they told the other ethnics group of Sunni.  I speak against them.  And talk bad about of them group and Sunni religion.  That's why I believed they will kill me too."

As can be seen, the dispute of which Mr Kahloo was complaining was a dispute between two land owning families.  It was primarily because of that dispute that the problems arose which Mr Kahloo sought to overcome by travelling to Australia.  Counsel for the applicant has criticised the reasons of the Tribunal and has, as I have said, pointed to the fact that the usual findings of fact have not been made.  However, the Tribunal member set out the claims which Mr Kahloo made and determined the matter on the basis of those claims without bothering to make specific findings of fact in relation to the events there described.  The findings of fact were implicit.  The Tribunal's reasoning proceeded on the footing that the matters which were stated by the applicant were correct. 

Counsel for Mr Kahloo submitted that the Tribunal did not make a finding as to whether Mr Kahloo left Pakistan because of a fear of persecution and as to whether that fear was well founded.  That is true except for the final conclusion expressed by the Tribunal.  However, the Tribunal did say that the applicant claimed that he came to Australia to escape from the long running dispute between his family and another.  The Tribunal described the dispute in this way:

"The situation described by the Applicant is one of a dispute between a large land owner and a smaller land owner brought about by what would appear to be an audacious and ill-advised attempt by his father to buy land in his rival's village.  (Rural land ownership in Pakistan is feudal.  Villages are bought and sold with tracts of land.)

The dispute has  become entwined with religious differences and the relative power that each family has been able to exercise with respect to the other.  The larger land owner in this dispute has apparently consistently had the upper hand in this regard.  In addition to the power and influence conferred on them by their greater wealth, they are also members of the majority and therefore mainstream Sunni sect.  This fact has assisted their access to influence because of the greater extent of the network available to them, i.e., more people with power and influence are Sunnis than Shias

...

The fact that the families are from rival sects has not helped resolution of the dispute.  The dispute is between two families and both have sought to use whtever influence is open to them to gain an advantage.  They have sought to use and co-opt institutions, the police and individuals to their particular cause.  These institutions and individuals are actors in the dispute.  They have not been active participants for reasons of religious belief or as parties seeking control or ownership of the land, or profits from the cultivation of the land."

The matters which were there set out do not in themselves suggest that the government of Pakistan was engaging in persecution of Mr Kahloo's family or of any social group to which the family belonged, nor does it, in itself, show that the government of Pakistan was not giving due protection to persons within its borders.

The Tribunal then turned its attention to that matter, for having expressed the point that local authorities including the police had become involved in the dispute, it went on to state that Mr Kahloo's family had enjoyed successful recourse to the High Court of Pakistan in 1986, when the Court found in their favour regarding a charge of murder which had been brought against family members.  The Tribunal did not say so expressly, but it is implicit in this finding that the Tribunal considered the courts of Pakistan to be independent.  The Tribunal did not mention another incident involving the Court but it appears from the papers that on another occasion during the land dispute an issue respecting title was taken to the High Court of Pakistan and on this occasion Mr Kahloo's family was not successful.   These matters suggest that the government of Pakistan did provide independent institutions such as independent courts and did provide protection to persons within its borders.

The Tribunal found that it was open to the applicant and his family to re-locate in Pakistan and that the applicant had demonstrated this through his voluntary re-location to Karachi in 1994 where Mr Kahloo had lived for some months but had found himself unable to earn a sufficient living there to bring his wife to join him.  Had this been a re-location case, I think the reasons given by the Tribunal would have been insufficient.  I agree with the point put by counsel for Mr Kahloo that it would have been necessary for the Tribunal to show why re-location was reasonable in all the circumstances and to set out the facts which were relevant to that matter.  However, I read the particular sentence as going rather to the point that the authorities Pakistan did not persecute a group to whom Mr Kahloo belonged.  The Tribunal was emphasising that, if Mr Kahloo departed from the area of the long-running dispute between the rival land owners, he would not suffer persecution of any kind in the remaining parts of Pakistan.

The two bases which are relied upon by way of Convention reasons are political opinion and religion.  As to political opinion neither the claim that was made or the evidence given suggests that Mr Kahloo and his family were being persecuted because of their political opinions.  Rather, the material suggests that the other land owners may have used whatever political influence they had to harm Mr Kahloo's family.  Both families apparently had some influence and as the Tribunal said, they sought to use whatever influence was open to them.  The dispute did not originate from the family's political opinions.  The Tribunal expressed the source of the dispute as an ill-advised attempt by Mr Kahloo's father to buy land in his rival's village. 

On the question of religion, the Tribunal explained that the Pakistan population was made up principally of Sunnis and Shias, and that the applicant's family were Shias.  The Tribunal said that there were approximately 26 million Shias in Pakistan and they comprised 20 per cent of the population. 

The Tribunal found on the information available to it that, although rivalry between Sunnis and Shias in Pakistan has erupted into violence from time to time, the constitution of Pakistan guaranteed equality before the law to all Pakistanis and broadly prohibited discrimination based on race, religion, caste, residence or place of birth.

The Tribunal said that religion had become inextricably woven into the dispute between the two families and had been used by them in attempts to win their case and prove their point, but the Tribunal said that some of the steps which had been taken by the applicant were provocative.  The Tribunal expressed the view that the course which the applicant had occasionally taken of speaking in the local mosque about Shia beliefs, which led to an incident in 1994 when he was attacked in his field, had been unwise and had increased the tension between the two families.  The Tribunal found that Mr Kahloo had not faced any such problems when he had moved to Karachi.

In these circumstances, I am satisfied that the Tribunal dealt with the substance of the matter and approached the issues on the correct basis.  I accept what counsel for the applicant has said about the form of the reasons.  However, reading the reasons as a whole it seems to me that the Tribunal member looked at the problems which Mr Kahloo faced in Pakistan and came to the view that his problems did not give rise to a fear based on convention reasons but were based on issues which had arisen between Mr Kahloo's family and the other land-owning family.

In those circumstances, I am not satisfied that there was any error of law in the Tribunal's decision, either in the expression of its reasons or in the approach which it took.  The application therefore will be dismissed with costs.

I certify that this and the preceding six  (6) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies

Associate:

Date:              1 December 1997

Counsel for the Applicant:	T. Reilly
Solicitor for the Applicant:	Ramrakha Jenkins
Counsel for the Respondent:	A.F. Backman
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	1 December 1997
Date of Judgment:	1 December 1997