MZAEG v Minister for Immigration

[2015] FCCA 844

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAEG v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 844

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – application for a Protection (Class XA) visa – relocation considered – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 477

Applicant: MZAEG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 928 of 2014

Judgment of: Judge Hartnett

Hearing date: 26 March 2015

Delivered at: Melbourne

Delivered on: 9 April 2015

REPRESENTATION

The Applicant: In person

Counsel for the respondents: Mr Brown

Solicitors for the respondents: Australian Government Solicitor

ORDERS

1. The Application filed on 16 May 2014 is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $4,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 928 of 2014

MZAEG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. These proceedings commenced with the Applicant filing an Application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 20 March 2014 by Application filed on 16 May 2014.  I note that because of the time lapse in respect of the Applicant filing his Application, the Applicant requires an extension of time to proceed with this application.  His Application is filed some 22 days after the permitted period of time within which to file such an application.

2. The grounds of application for the extension of time are as set out by the Applicant as follows:-

   “1. Its mistake in counting of no. days.  I start counting from 24/3 the date I received the letter.

   2. I was considering and consulting with people.

   3. It was important decision so I need lot of research as well.”[1]

   [1] Applicant’s Application filed 16 May 2014.

3. The grounds of the application are as follows:-

   “1. In Refugee Review Tribunal decision point 38, it is mentioned to relocate Punjab.  Here I mentioned in the interview I spend some time of my life in Punjab around two to three years and it was around 22 years in the past. and this fact does not help me blend in the Punjab.”[2]

   [2] Applicant’s Application filed 16 May 2014.

4. By Response filed on 30 May 2014, the First Respondent sought that the application be dismissed and the Applicant pay the First Respondent’s costs of the proceedings.  The Respondent argued that the Tribunal decision of 20 March 2014 was not affected by any error of law.

5. The parties came before Registrar Allaway on 6 August 2014 and, by consent, entered into procedural orders.  Included in those procedural orders was an order that the Applicant file and serve an amended application, if any, with proper particulars of the grounds of the application and also written submissions.  The Applicant has not filed any amended application, nor written submissions.  The First Respondent, in accordance with the procedural orders, filed Contentions of Fact and Law on 5 March 2015.  Those are relied upon by the First Respondent.  There is also before the Court, a Court Book and its contents are in evidence in these proceedings.

History

1. The Applicant is a citizen of Pakistan of Punjabi ethnicity and Sunni Muslim religion who was brought up in the Punjab culture and language, but also speaks fluent Urdu and English.  He was born in Karachi on 26 April 1997 and went to live with his aunt in Arifwala Pubjab province for three years when he was 10 or 11 years of age.  His parents and sister reside in Karachi and his brother resides in the United Arab Emirates.

2. The Applicant first entered Australia on 25 January 2006 on a Pakistan passport.  He arrived as the holder of a student visa granted on 7 December 2005.  On 9 October 2006, he was granted permission to work on his Student (Temporary) (Class TU) (Subclass 572) visa.  On 13 June 2008, he was granted a further Student (Temporary) (Class TU) (Subclass 572) visa.  That visa ceased on 22 October 2008.  A notation was placed on the Applicant’s record to state that he did not commence this course. On 20 October 2008, the Applicant applied for a Student (Temporary) (Class TU) (Subclass 573) visa and was granted a Bridging visa A in association with that application.  That Student (Temporary) (Class TU) (Subclass 573) visa was granted on 23 December 2008 and ceased on 30 September 2010.  A Non-Compliance Notice was attached to the Applicant’s record as his enrolment was cancelled due to non-payment of fees.  After the cessation of that visa on 30 September 2010, the Applicant remained unlawfully in Australia.  He applied for a partner visa on 4 October 2010, and withdrew that application on 4 November 2011. 

3. On 2 December 2011, the Applicant applied for a Student (Temporary) (Class TU) (Subclass 573) visa and was granted a bridging visa from that date.  The Student (Temporary) (Class TU) (Subclass 573) visa application was refused on 5 December 2011, as the Applicant was not holding a substantive visa at the time of lodgement of the application.  The Applicant lodged a request for a review to the Migration Review Tribunal, and the decision was affirmed on 13 February 2013.  The associated Bridging visa C ceased on 22 March 2013.

4. The Applicant became an unlawful non-citizen on 22 March 2013 and three days later he lodged an Application for a Protection (Class XA) visa.  The delegate of the First Respondent refused to grant the visa on 8 October 2013.  The Applicant lodged an Application for review of that decision with the Tribunal on 8 November 2013, and was invited to appear before the Tribunal to give evidence and put arguments on 4 March 2014.  Thereafter and on 20 March 2014, the Tribunal affirmed the delegate’s decision by Decision Record dated 20 March 2014 (‘the Decision Record’).

The Tribunal Hearing

1. The Tribunal recorded the Applicant’s claims as set out in the First Respondent’s Contentions of Fact and Law filed on 5 March 2015 at paragraph 7.  They were as follows:-

   (1)That members of the Muttahida Quami Movement (‘MQM’), a political party based in Karachi which was part of the ruling coalition in Karachi, had demanded money from him and threatened and assaulted him, and would continue to do so should he return to Pakistan.

   (a)He and some friends have been forced to attend a political meeting by the MQM in 1995.

   (b)The MQM had approached his family’s business in about 1996 or 1997, demanding payments of money, essentially commissions to the party in return for being allowed to do business.  His father, who ran the property business, matching property sellers and buyers and taking a commission, had previously paid lesser amounts to the MQM, but the MQM demanded much larger sums from the Applicant who made the payments despite being told by his father not to pay so much.

   (c)The MQM asked the Applicant to market properties that he believed were actually owned by the government and he refused to do so.  A local MQM leader accused him of telling people that the properties were dodgy and fired three or four bullets into the air.  He did not report this incident to the police as it would have made matters worse.

   (d)The same local leader asked the Applicant to sell another piece of land which was being sold to more than one buyer.  When the Applicant refused to be involved, he was threatened again.  That was when he decided to wind up the family business, which was closed in 2005.

   (e)MQM continued to make threats after the business was closed and the Applicant paid them small sums to leave him alone.

   (f)In 2009, when the Applicant had returned to Pakistan for a wedding, the same local leader told him that MQM had not forgotten his conduct toward them and invited the Applicant to make a gift to MQM, which he did in the sum of 10,000 rupees.

   (g)The MQM had not asked his father for money while the Applicant had been in Australia, but they would want to make an example of the Applicant should he return to Pakistan as he knew about the dodgy property deals and he had refused to collaborate with them. 

   (2)The Applicant initially indicated that he only feared harm from the MQM but subsequently said he was a moderate, and fundamentalist groups were forceful and aggressive.

2. The Tribunal accepted that the Applicant may have been taken to a political meeting in 1995, but found that this did not amount to persecution.  It also accepted that the MQM demanded money from the Applicant while he was conducting business in Karachi, but found that such demands were made on other businesses by political parties, and dealing with such demands was part of the cost of doing business in Karachi. 

3. The Tribunal further accepted that MQM continued to harass the Applicant until he left Pakistan in January 2006, and that he paid members of the MQM small amounts of money on two occasions following the closure of his business in 2005. 

4. The Tribunal accepted the Applicant’s account of having refused to be involved in dodgy land deals and having closed the family business in 2005 following the receipt of threats, including the firing of bullets near to the Applicant which amounted to serious harm. 

5. The Tribunal considered, however, that it was unlikely that MQM would continue to extort money from the Applicant should he return to Karachi, given that he would not have been operating a business in Karachi for eight years, but accepted that he might be seen as an easy target given his previous payments and his knowledge of the illegal property dealings, which may be used to threaten him so as to extort further money. 

6. Given that such threats would be made by a political party in power, they would be able to act with a high degree of impunity, and the Applicant would be more vulnerable as a Punjabi in a Mohajr district.  The Tribunal, therefore, found that such harm would arise because of the Applicant’s imputed political opinion of lack of support for the MQM and because of his ethnicity. 

7. Country information revealed that the MQM could exercise powerful inference in Karachi, including having supporters in the police, regardless of their suitability, and the Tribunal determined that the Applicant would not enjoy access to state protection as a consequence. 

8. In relation to fundamentalist groups, the Tribunal noted that the Applicant was a Sunni Muslim but did not have a profile that would make him a target.  The Tribunal determined that it did not accept the Applicant faced a real chance of serious harm or a real risk of significant harm from extremist or fundamentalist groups in Pakistan. 

9. Whilst the Applicant’s father was a retired member of the Pakistan army, no claim was made in relation to his father’s past employment in the army.

10. The Tribunal went on to find that the MQM had little or no influence outside Karachi, so the risk of harm faced by the Applicant was limited to Karachi. 

11. The Tribunal noted the Applicant was of Punjabi ethnicity, had been raised in the Punjabi culture and spoke Punjabi, had lived there for three years while he was at school and had family living in the province.  He held an accountancy qualification and had previously run a profitable business in Karachi.  He now spoke fluent English, an official language in Pakistan.  As a Sunni Muslim of Punjabi ethnicity, the Applicant would not be a target for extremist Sunni groups. 

12. The Tribunal concluded the Applicant could safely and reasonably relocate to Punjab if he feared harm by the MQM in Karachi and that he did not have protection obligations under either limb of s.36(2) of the Migration Act 1958 (Cth) (‘the Act’).

13. In paragraph 32 of its Decision Record, the Tribunal said:-

    “In view of the influence of the MQM in Karachi, the Tribunal accepts that adequate or reasonable state protection will not be available to the applicant in an MQM controlled district giving rise to a real chance he will suffer serious harm.”

14. The Tribunal accepted that the threats, particularly the firing of bullets near the Applicant, amounted to serious harm. 

Consideration

1. The Court determines the Applicant’s application for an extension of time should be refused pursuant to s.477 of the Act. The reason for this is that the substantive application for judicial review does not raise an arguable case for the relief as sought by the Applicant.

2. Having found the Applicant faced a real chance of serious harm or a real risk of significant harm from MQM activists should he return to Karachi, but that any threat of harm from the MQM would be localised to Karachi, the Tribunal gave consideration to the reasonable practicability of the Applicant relocating to the Punjab.  The Tribunal made findings which it summarised in paragraph 37 of its Decision Record, which was as follows:-

   “The applicant is of Punjab ethnicity.  He was raised in the Punjab culture and speaks Punjabi.  He has family members living between Lahore and Multan.  He lived in Punjab for a period of three years whilst completing his schooling.  He had an accountancy qualification and has run a profitable business in Karachi.  He has lived and worked in Australia for 8 years and speaks fluent English which is an official language of Pakistan.  Whilst there is a degree of insecurity in Pakistan arising from the activities of extremist Sunni groups and other militant groups, the applicant is from the majority ethnicity in Punjab and the majority religion and is not a target of such groups.  Given these circumstances, the Tribunal finds that the applicant can safely and reasonably relocate to Punjab if he fears that he will be harmed by members of the MQM in Karachi.”

3. The Applicant claims in his Application that the fact he resided at one point in his life in Punjab did not help him now to “blend in the Punjab.”  That ground does not identify a jurisdictional error attending the Tribunal’s decision.  The Tribunal did give consideration to the three year period the Applicant had lived in the Punjab while at school, amongst its other considerations as to his background.  All of its findings, as set out in paragraph 37 of its Decision Record, were open to it on the evidence before it.  There was no illogicality in the decision reached by the Tribunal and I accept Counsel for the First Respondent’s submissions that what is sought is a merits review, which is impermissible by this Court.  The Application shall be dismissed and costs will follow the event.

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

Associate: 

Date: 9 April 2015