Mzace v Minister for Immigration

[2015] FCCA 1143

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZACE v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1143

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – application for a Protection (Class XA) visa – no well-founded fear of persecution – no real risk of significant harm – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 499

1951 Convention Relating to the Status of Refugees
1967 Protocol Relating to the Status of Refugees

Applicant: MZACE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 545 of 2014

Judgment of: Judge Hartnett

Hearing date: 20 April 2015

Delivered at: Melbourne

Delivered on: 20 April 2015

REPRESENTATION

The Applicant: In Person

Counsel for the respondents: Ms Ngo

Solicitors for the respondents: Australian Government Solicitor

ORDERS MADE ON 20 APRIL 2015

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $6,825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 545 of 2014

MZACE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited ex tempore reasons)

1. By judicial review Application filed on 27 March 2014, the Applicant seeks judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 27 February 2014.  The Applicant seeks an order that the decision of the Tribunal be quashed and a writ of mandamus be directed to the Tribunal requiring it to determine the Applicant’s application according to law.  The grounds of the Application are as follows:-

   “1. The Tribunal failed to properly consider all of my claims.

   2. Tribunal didn’t give me the fair decision.”

2. The grounds are not particularised.  It is not for this Court to carry out that task for the Applicant.  The decision of the Tribunal in relation to which this application is made, found that the Applicant was not a person in respect of whom Australia has protection obligations and affirmed a decision of a Delegate of the First Respondent to refuse to grant the Applicant a Protection (Class XA) visa (‘the protection visa’).

3. By Response filed on 8 April 2014, the First Respondent sought the application be dismissed and the Applicant pay the First Respondent’s costs of the proceedings.  The First Respondent argued that the decision under review was not affected by jurisdictional error.  Before Registrar Allaway on 25 June 2014, the parties entered into procedural orders by consent.  Included amongst those orders were the following:-

   “3. The Applicant file and serve an amended application with proper particulars of the grounds of application by 6 March 2015.

   4. By 6 March 2015, the applicant file and serve:

   (a) supplementary Court Book, if any; and

   (b) written submissions.”

   The Applicant complied with neither of those orders.

History

1. The Applicant is a national of Pakistan.  He claims to speak, read and write Urdu and English. He is a Sunni Muslim.  His parents live in Faisalabad, Punjab, which is the place from which he originates.

2. The Applicant arrived in Australia on 4 February 2010 on a Pakistani passport as the holder of a (Class TU) (Subclass 572) Vocational Education and Training sector visa (‘student visa’) granted on 19 January 2010.

3. On 21 August 2011, the Applicant departed Australia.  Department of Immigration and Border Protection (‘the Department’) records indicate he returned to Pakistan to attend a relative’s wedding.  He stated at interview he returned to Pakistan because it was Eid and he was homesick, and also to discuss some matters with his parents.

4. The Applicant returned to Australia on 16 September 2011.  He has not departed Australia since that time.  On 20 September 2011, the Applicant’s student visa was cancelled as the Applicant breached condition 8202.  The Applicant sought review of the cancellation on 24 October 2011.  On 6 February 2013, the Migration Review Tribunal affirmed the visa cancellation decision.  On 15 March 2013, the Applicant lodged the current applicant for the protection visa.

5. On 21 October 2013, a Delegate of the First Respondent (‘the Delegate’) made a decision refusing the protection visa.  The Applicant then applied to the Tribunal for review of the Delegate’s decision on 19 November 2013.  The Applicant, by correspondence of 17 December 2013, was invited to appear before the Tribunal to give evidence and present arguments relating to the issues in his case.  The Tribunal advised it arranged a hearing for 30 January 2014.  On that date, the Applicant appeared before the Tribunal. He was assisted by an interpreter in the Urdu language.  On 26 February 2014, the Tribunal affirmed the Delegate’s decision.

6. The Tribunal, in its Statement of Decision and Reasons dated 26 February 2014 (‘the Decision Record’), correctly set out the relevant law applicable to the matter before it. It also noted the Ministerial Direction number 56 made under s.499 of the Migration Act1958 (Cth) (‘the Act’). It took into account the policy guidelines prepared by the Department of Immigration and Border Protection, PAM3: Refugee and Humanitarian Complementary Protection Guidelines and PAM3: Refugee and Humanitarian Refugee Law Guidelines. It had regard to country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent they were relevant to the decision under consideration.

7. The Tribunal noted the Applicant’s claims as follows:-

   a)he is a Sunni Muslim from Faisalabad in Pakistan;

   b)there is no safe place in Pakistan. As set out in the Decision Record at paragraph 18, his claims included:-

   “… The majority of the population are Muslim and are very restrictive.  The applicant drinks alcohol and has had a girlfriend.  His parents punished him for this, and he was blackmailed by police officers.  The applicant needs freedom, including having alcohol and sex before marriage, and will be punished in Pakistan.  His way of life does not match with Pakistani culture and tradition.  He may be killed for his actions by a Muslim.  He can’t change his religion.  Pakistan is an Islamic country, the authorities will not protect him.  People who convert from Islam to another religion face the death penalty.”

   The Applicant provided a copy of the “Prohibition (Enforcement of Hadd) order 1979” which banned intoxicants; and

   c)he will be harmed by family members due to a refusal to enter into an arranged marriage with a cousin.  The Applicant also claimed that Pakistan was not a safe place and that he would be at risk of harm due to generalised violence in Pakistan.

8. The Tribunal discussed with the Applicant his claims, specifically and generally.  The Tribunal considered laws of general application and explained such concept to the Applicant.  It said at paragraph 27 of its Decision Record:-

   “… It is well established that enforcement of a generally applicable law does not ordinarily constitute persecution for the purposes of the Convention, (Applicant A v MIEA (1997) 190 CLR 225 per McHugh J at 258 referring to Yang v Carroll (1994) 852 F Supp 460 at 467) for the reason that enforcement of such a law does not ordinarily constitute discrimination (Chen Shi Hai v MIMA (2000) 201 CLR 293 at [20]). As Brennan CJ stated in Applicant A:

   ... the feared persecution must be discriminatory.... [it] must be “for reasons of” one of [the prescribed] categories.  This qualification ... excludes persecution which is no more than punishment of a non-discriminatory kind of contravention of a criminal law of general application.  Such laws are not discriminatory and punishment that is non-discriminatory cannot stamp the contravener with the mark of “refugee”. (Applicant A v MIEA (1997) 190 CLR 225, at 233).”

The Tribunal’s decision

1. The Tribunal acknowledged the operation of the Hudood laws, noting that these forbid drinking of alcohol and premarital sex, but also noted the Applicant’s own experience in Pakistan indicated that he was able to engage in these activities. The Tribunal also noted that, while these laws were in place, country information, including that considered and referred to in the Decision Record, described the enforcement of such laws to be limited.

2. The Tribunal said, at paragraphs 32 to 33 of its Decision Record, the following:-

   “32. The Tribunal noted that the Hudood laws in Pakistan applied to all Muslims and did not arbitrarily or discriminatorily impact on any particular group within the Muslim community.  The applicant agreed with this statement, that all were subject to this law.  The Tribunal noted the case law, with respect to laws providing sanctions on sex before marriage, which had been considered in the context of Islamic law in Iran and found not to be imposed in a discriminatory manner.

   33. The Tribunal has considered the imposition of the Hudood laws in Pakistan, and considers that they are applied without discrimination.  The Tribunal considers that if the applicant was apprehended due to his failure to observe the laws about alcohol or relationships before marriage, the applicant would be punished in accordance with the generally applied laws.  The Tribunal does not accept that the possible imposition of these laws on the applicant is serious harm, or that the imposition of the Hudood law in Pakistan constitutes persecution.”

3. The Tribunal rejected the Applicant’s claim that he would be viewed as having converted to another religion. Whilst the Applicant’s observance of Islamic practices may have been limited, the Tribunal did not accept that this would lead to any inference that the Applicant had become an adherent of another religion.  The Tribunal did not accept that the Applicant would be harmed at all for this reason.

4. The Tribunal also did not accept that the Applicant would be targeted by the Taliban or any Islamic group in Pakistan because of his activities, noting that whist the Taliban had a significant presence in some locations, the Taliban had much more limited influence in the Applicant’s home town of Faisalabad.  It did not accept that the Applicant would come to the attention of the Taliban through his drinking of alcohol, having relations with females with whom he is not married, or for his general non-observance of religious practices in Pakistan.

5. The Tribunal found that the Applicant would continue to act in a manner that was in contravention of particular tenets of the Muslim’s faith in Pakistan.  The Tribunal said, at paragraph 37 of the Decision Record, that it found the Applicant not to have a real chance of serious harm arising from his contravention of the Hudood laws.  The Tribunal found that the Applicant did not have a well-founded fear of persecution for this reason now or in the reasonably foreseeable future.

Complimentary protection obligations

1. The Tribunal also considered the imposition of the Hudood laws in relation to the complimentary protection provisions of the Act. The question for its determination was whether the lawful sanctions that can be imposed as part of the Hudood laws for the actions that the Applicant states he would enter into, would breach the definitions of significant harm as provided.

2. The Tribunal accurately set out the law in relation to complimentary protection obligations and considered country information regarding the imposition of the Hudood laws in Pakistan.  It noted, as discussed with the Applicant, the drinking of alcohol in Pakistan continues with little limitation.  The Tribunal considered the country information, as discussed with the Applicant, showed that the imposition of fines, (which is the common punishment for drinking of alcohol) was limited.  The Tribunal considered that even if a fine was imposed on the Applicant for drinking alcohol, this would not constitute significant harm as defined and would be a lawful sanction imposed that is not in contravention of any international treaty.

3. With respect to premarital sex, the Tribunal noted that the Pakistani penal code provides fines and possible imprisonment for fornication but that imposition of sentences under the Hudood laws for this offence had not been carried out. The Tribunal considered that even if a punishment was imposed on the Applicant for premarital sex, this would not constitute significant harm as defined by the Act.

4. The Tribunal found the Applicant did not face a real risk of significant harm due to his living in a manner that did not adhere to the strict interpretation of Islam. 

5. The Tribunal considered the Applicant’s claims that he will face harm from family members due to his previous activities and his refusal to marry a cousin in an arranged marriage.  The Tribunal did not consider that any punishment his parents imposed on him was of a nature that constituted harm in any manner.  The Tribunal did not accept that the Applicant faces a real chance of serious harm or a real risk of significant harm arising from this refusal to go through with an arranged marriage.  The Tribunal considered that at most he would be ostracised from the family, but the Tribunal did not consider that ostracisation from the family constituted serious or significant harm.  The Tribunal found the Applicant did not face a real chance of serious harm or a real risk of significant harm due to family punishment or ostracisation.

6. In relation to the Applicant’s claim of fear of being harmed in the general violence in Pakistan, the Tribunal found that taking into account country information regarding Faisalabad, including the very limited violence in that city and the Applicant’s own reflections on that city, such as the claim there may have been violence two and a half years ago, the Tribunal considered that the threat of generalised violence in Faisalabad was extremely limited. It found the Applicant did not have a real chance of serious harm or of significant harm due to generalised violence in Faisalabad.

7. The Tribunal stated, at paragraph 55 of its Decision Record, in response to the claims of the Applicant which were reiterated in the court room this day, that the Applicant had changed completely since he arrived in Australia, thus could not return to Pakistan, the following:-

   “The Tribunal understands that the applicant has an attitude on life that differs from some in Pakistan.  The Tribunal accepts that the attitude towards freedom has been developed further in Australia, and the applicant has some mental concerns for which he is receiving some assistance in Australia. However the applicant also displayed this attitude while living and residing in Pakistan prior to coming to Australia, including drinking alcohol and having a relationship with a woman despite being unmarried.  The Tribunal considers that the freedom that the applicant states he needs is available to him in Pakistan should he choose to continue to drink and associate with women without getting married.  The Tribunal does not consider that the applicant is someone in respect of whom Australia has protection obligations towards, on the basis of his desire for his own expression of freedom.  The Tribunal considers that the applicant can continue to express his ideas and opinions, without a real chance of serious harm, or a real risk of significant harm.”

8. The Tribunal concluded, individually and cumulatively, that the Applicant did not have a real chance of serious harm for a 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees reason.  It found that the Applicant did not have a well-founded fear of persecution in Pakistan now or in the reasonably foreseeable future.  Further, the Tribunal found there were no substantial grounds for believing that as a necessary and foreseeable consequence of the Applicant being removed from Australia to Pakistan, there was a real risk that he would suffer significant harm.

Consideration

1. The Tribunal’s decision afforded natural justice and procedural fairness to the Applicant. It gave a careful consideration to his various claims and cited and applied the correct law in determining whether the Applicant met the criteria for the visa in s.36(2) of the Act. Each of the findings made by the Tribunal with respect to the Applicant’s claims were open to it on the evidence before it. The Applicant is unhappy with the Tribunal decision. He desires a different outcome. He made an application without any proper grounds. He sought merits review, which it is not a function of this Court on this hearing. The application will be dismissed with costs.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  5 May 2015