MZAFP v Minister for Immigration

[2015] FCCA 954

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAFP v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 954

Catchwords:
MIGRATION – Judicial review – adjournment refused – whether denial of procedural fairness – Tribunal entitled to accept/reject evidence – choice of country information is up to Tribunal – whether relocation is practicable in the particular circumstances – application dismissed.

Legislation:  

Migration Act 1958 (Cth), Part 7 Div.4, s.422B.
Federal Circuit Rules 2001, r.15.03.

Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Plaintiff M13/2011 v Minister for Immigration and Citizenship [2011] HCA 23
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Selvadurai v Minister for Immigration and Ethnic Affairs & Anor (1994) 34 ALD 347
SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415

Applicant: MZAFP

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1128 of 2014

Judgment of: Judge F. Turner

Hearing date: 10 March 2015

Date of Last Submission: 10 March 2015

Delivered at: Melbourne

Delivered on: 10 March 2015

REPRESENTATION

The Applicant appeared In Person with the assistance of an Urdu interpreter

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The applicant’s application for an adjournment is dismissed.

2. The application for judicial review filed 10 June 2014 is dismissed.

3. The applicant pay the first respondent’s costs fixed in the sum of $6,825.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 1128 of 2014

MZAFP

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex tempore and Revised)

1. This is an application for judicial review of a decision of the Refugee Review Tribunal (the “Tribunal”) dated 15 May 2014. That decision affirmed a decision of the delegate to the Minister not to grant the applicants Protection (Class XA) visas (Court Book “CB” p.284).

2. The named applicant applied by letter dated 2 March 2015 for an adjournment of the hearing today, because the applicant had insufficient time to prepare and engage legal representation.

3. The applicant lodged his application for judicial review on 10 June 2014 and has had 11 months to prepare and find legal representation.

4. The applicant obtained initial assistance from Victoria Legal Aid, but it advised him by letter dated 25 February 2015, that it had come to the view that “there is not sufficient merit in your case for you to qualify for a grant of legal assistance”. The applicant has therefore received some legal advice about his application to this Court. 

5. The first respondent opposes an adjournment. 

6. The Court considered the application for an adjournment in chambers and refused the application.

7. The applicant was advised of this on 3 March 2015 and was told that he could make a further application for an adjournment today. That was made, and again was opposed by the first respondent.

8. At the hearing today, the applicant father has represented himself and his wife and their daughter, with the assistance of an Urdu interpreter. Ms Ngo appeared for the first respondent.

9. Nothing further of substance was put to the Court today to convince it to grant an adjournment. The Court again refused the application.

10. By orders dated 3 September 2014, the applicant was ordered to file and serve written submissions by 30 January 2015. That was not done, however the applicant today handed to the Court, extensive written submissions in support of his application, which is marked Exhibit A1.

11. The Court proceeded to deal with all points in those written submissions. The Court will not go through all the comments made by it in relation to each point raised, as they will appear in transcript.

12. The grounds for a judicial review are set out in the application filed on 10 June 2014 as follows:

    (1)The Tribunal denied me procedural fairness because they did’nt give me the fair hearing.

    (2)The Tribunal failed to properly consider all of my claims.

    (3)The Tribunal didn’t give me an opportunity to comment on an issue that was in dispute.

13. Ms Ngo consented to the Court proceeding to deliver a decision in this matter without hearing oral submissions. That is done pursuant to r.15.03 of the Federal Circuit Rules 2001.

14. The first respondent filed and served written submissions on 27 February 2015, which to some extent had been dealt with by the Court today after objection by the applicant as to some of the content of those written submissions.

15. Those submissions include the following information:

    ·The applicant is a citizen of Pakistan. He arrived in Australia on a student visa on 4 January 2014. The applicant’s wife and daughter arrived in Australia on 24 June 2012 on student dependent visas: [4].

    ·The applicants applied for the visas on 7 December 2012. On 4 September 2013, a delegate of the Minister refused to grant the visas: [5].

    ·On 18 September 2013, the applicants applied to the Tribunal for review of the delegate’s decision: [6].

    ·On 8 April 2014, the applicants appeared before the Tribunal to give evidence and present arguments: [7]. They were assisted by an Urdu interpreter and by their migration agent.

    ·On 15 May 2014, the Tribunal affirmed a decision not to grant the visas: [8].

16. The claims by the applicant as are outlined in the first respondent’s written submissions as follow:

    (10)The first applicant claimed that he was an active member or (sic ‘of’) the Haqiqi Mohajir Quami Movement (MQM-H) which is a splinter group of the Mohajir Quami Movement (MQM-M) which is now known as Muttahida Quami Muhaz (MQM-A). The Tribunal noted that the MQM-A formed in 1992 after disagreement arose between Altaf Hussein, the leader of MQM-A and two MQM militants, who accused Altaf Hussein of being too soft and unwilling to take action against the government in support of the rights of the Mohajirs.

17. The applicant today has made complaints about the findings of the Tribunal as to whether there were two factions or three, but the Tribunal found there were two and that one of them had been renamed.

    (11)The applicant and his family lived in Gulberg Town in Karachi, Pakistan. The applicant claimed that he first discovered MQM-H in 1999 when he was at college, and he became an active member in 2003. He claimed that he became a senior member or “sector member” for Landhi sector in 2003. His role as a sector member included recruiting new members campaigning for elections, fundraising, looking after families in need and national calamities. In his statutory declaration dated 5 December 2012, he claimed that he was the most senior sector member and that he attended meetings with the Divisional Secretary-General.

    (12)The Tribunal noted that the applicant did not know why the MQM-A broke away from MQM. It noted the applicant’s evidence that he heard there was a falling out but did not know much about it as he was very young. When the Tribunal suggested that the applicant would have knowledge of the MQM-H’s history if he was an active member, the applicant said that the groups had a different agenda and the MQM-A was about putting fear into people.

    (13)The applicant stated that his father and brothers were not members of the MQM-A or any political party. He claimed he did not tell his family about his involvement with the MQM-H. 

18. Further history of the matters is set out in the written submissions by the first respondent from [14] to [21].

19. The Court accepts the following written submissions from the Minister at [22]:

    (22)… the Tribunal accepted that the applicant may have had some involvement with MQM-H, it did not accept that the applicant held a senior position in the movement as his knowledge of the history of the aims of the MQM-H was limited, but it did accept that he may have been an active member with some responsibilities.

20. The Tribunal is entitled to accept or reject evidence. As stated by the Federal Court of Australia in Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27]:

    “The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.”

21. The submissions continued at [23]:

    (23)The Tribunal did not accept that the applicant received threatening phone calls, for the following reasons (set out at CB p.280 [44]):

    23.1The Tribunal did not accept that the applicant held a senior position with the MQM-H (Ibid).

    23.2Country information shows that the conflict between MQM-A and MQM-H has been out in the open and in the form of violent clashes instigated on both sides (Ibid).

    23.3Country information indicates that the MQM-H lost power and presence in Karachi, including in Landhi, from about 2005 whilst the MQM-A has increased its power and influence.

22. The applicant is critical of the country information which he says contains errors. However, the choice of country information is for the Tribunal alone. Findings of fact are not amenable to review.

23. In NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 the Full Court stated at [10]:

    “In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s 39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal.”

24. As stated in Selvadurai v Minister for Immigration and Ethnic Affairs & Anor (1994) 34 ALD 347:

    “A decision-maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out.”

25. In addition, the Tribunal made the following findings of fact and set out its reasons for the findings. At [24] to [29] of the first respondent’s written submissions:

    (24.1)It accepted that the applicant may have been present at the MQM-H stall in 2008 which was fired on by members of MQM-A. However it did not accept that the applicant was a specific target in the attack, but accepted that members of the MQM-H were targeted in the attack: CB 281 at [45].

    (24.2)It did not accept that the applicant was threatened by members of his own party for reducing his involvement in party activities or that he was followed by people wearing helmets or that he was forced to live away from his home for periods of time between 2009 and 2011: CB 281 at [46].

    (24.3)It did not accept that the applicant's brother was kidnapped and harmed in 2012 by members of MQM-H looking for the applicant although it accepted that the applicant's brother was injured and his arm was amputated in 2012: CB 281 at [47].

    (24.4)It did not accept that the applicant's family received threats or silent calls after the applicant's brother was released from hospital or that the applicant's wife received a telephone call threatening to kidnap the applicant's daughter: CB 281 at [48].

    (25)For the reasons given above, the Tribunal did not accept that the applicant, his wife or daughter had been targeted or threatened or that his brother has been harmed by members of the MQM-H: CB 281 at [49].

    (26)The Tribunal accepted that the applicant may have been shot at in the past by members of the MQM-A because of his involvement with MQM-H. The Tribunal considered the shooting to be part of the history of violence and conflict between the two factions and not directed specifically at the applicant: CB 281-282 at [50].

    (27)In view of the applicant's evidence that he does not want to be involved with politics anymore, the Tribunal did not accept that he will be actively involved with the MQM-H on return to Pakistan. Accordingly, it did not accept that the applicant faces a real chance of serious harm, including in the form of shooting or other violent attack by members of MQM-A or any other political party, now or in the reasonable foreseeable future because of his involvement with MQM-H: CB 282 at [51].

    (28)The Tribunal found that the applicant does not have a well-founded fear of persecution in Pakistan because of his political opinion. As the Tribunal has found that there is no risk of harm to the applicant, the Tribunal did not accept that there were substantial grounds for believing that there is a risk that the applicants will suffer significant harm on return to Pakistan because of the his past involvement in MQM-H, and therefore it did not satisfy the criteria set out in s 36(2)(a) or (aa) and were also unable to satisfy s 36(2)(b) or (c): CB 284 at [62].

26. Based on those findings the applicants do not have a satisfactory basis for establishing a need for protection under the Convention.

27. The reasons continued at [29]:

    (29)As a separate, independent finding, the Tribunal considered that the applicant could reasonably relocate to the Punjab if the applicant fears harm in Karachi: CB 283 at [61].

28. The reasons for that finding are set out at CB p.282 [55] to [61] under the heading “Relocation”.

29. The applicants object today and say that they do not have knowledge of the Punjabi customs or language and therefore cannot relocate to the Punjab. The Court has dealt with that submission earlier in the hearing today.

30. As decided by the Full Court in SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415 at [124]-[126]:

    “The test for relocation is whether it is practicable in the particular circumstances of the particular applicant (SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 at [24]; and SZFDV v Minister for Immigration and Citizenship[2007] HCA 41; and SZFDV v Minister for Immigration and Citizenship [2007] ALMD 6401; and SZFDV v Minister for Immigration and Citizenship 237 ALR 660; 81 ALJR 1679; 233 CLR 51; 97 ALD 27). The answer to that question in turn depends upon the framework set by the particular objections raised to relocation: Randhawa 52 FCR at 442-443, especially at 443C-D.

    We do not think that the decision of Stone J in SZCBT v Minister for Immigration and Multicultural Affairs[2007] FCA 9 dictates any different result. In our view, the result in that case turned on its own facts. Of particular importance in that case was the acceptance by the Tribunal that the applicant had been harassed in the past as he had alleged.

    In the present case, the Tribunal rejected all of the appellant’s claims of past harm and there was no basis for the Tribunal to speculate that the appellant may be harmed if he relocated.”

31. The same rationale applies to this case. The Tribunal did not accept much of the applicant’s evidence.

32. In Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437, Black CJ observed that the focus of the Convention is not upon the protection that the country of nationality might be able to provide in particular regions, but upon a more general notion of protection by the whole of the country. In Randhawa (supra) at p.441, Black CJ considered that the reason for this was that:

    “If it were otherwise, the anomalous situation would exist that the international community would be under an obligation to provide protection outside the borders of the country of nationality even though real protection could be found within those borders.”

    Black CJ also held that given the humanitarian aims of the Convention, the question to be asked is not merely whether an applicant could relocate to another area, but whether he or she could “reasonable be expected to do so.” His Honour stated at p.442:

    “… a person’s fear of persecution in relation to that country will remain well-founded with respect to the country as a whole if, as a practical matter, the part of the country in which protection is available is not reasonably accessible to that person.”

    Beaumont J agreed that relocation must be a reasonable option, stating at p.451:

    “That is to say, if relocation is, in the particular circumstances, an unreasonable option, it should not be taken into account as an answer to a claim of persecution.”

33. In the present case, the Tribunal found that relocation to the Punjab is reasonable (CB p.283 [61]).

34. As stated by Hayne J in Plaintiff M13/2011 v Minister for Immigration and Citizenship [2011] HCA 23 at [21]-[22]:

    “Consideration may be given to the possibility of a claimant for protection relocating in the country of origin if relocation is a reasonable (in the sense of practicable) response to the fear of persecution[1]. As three members of this Court pointed out in SZATV v Minister for Immigration and Citizenship[2], “[w]hat is ‘reasonable’, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person…”.

    [1]  Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437.

    [2]  [2007] HCA 40; (2007) 233 CLR 18 at 27 [24] per Gummow, Hayne and Crennan JJ; [2007] HCA 40. See also at 48-49 [100]-[102] per Kirby J, 49 [105] per Callinan J.

35. Here, it is clear from the decision of the Tribunal that the particular circumstances of the applicants were considered and the correct question was considered.  The Tribunal considered whether it would be reasonable for the applicants to relocate.

36. Grounds one and three of the application for judicial review allege a denial of procedural fairness because the applicants were not given a fair hearing and were not given an opportunity to comment on an issue in dispute. The Court has listened to the complaints today about the hearing, and notes that the applicants were invited to attend the hearing, to give evidence and make submissions and were assisted by an Urdu interpreter and by their migration agent.

37. The Court finds that nothing has been shown to establish a failure of the Tribunal to comply with Part 7, Division 4 of Migration Act 1958 (the “Act”) which is an exhaustive statement of the natural justice hearing rule in relation to matters under s.422B of the Act.

38. By attending the hearing, the applicants were given an opportunity to comment on all matters in issue or dispute. A denial of an opportunity to do that has not been established by the applicants.

39. Grounds one and three of the application for judicial review are dismissed.

40. Ground two alleges a failure to properly consider all of the applicant’s claims. That has not been established. What appears from the applicant’s submissions today is that the applicant complains that much of their evidence was rejected. As referred to earlier by the decision in Lee (supra), the Tribunal is entitled to accept or reject the evidence proffered in a particular case as it thinks appropriate in all the circumstances.

41. It has not been established that the Tribunal failed to consider the claims by the applicants. The decision shows that the Tribunal considered the applicant’s claims and made findings that were open to it. It was entitled to reject evidence for the reasons it gives. Ground two is also dismissed. The application for judicial review is dismissed. 

1. The Minister has been successful in its opposition to the application for judicial review and is entitled to seek its costs be paid by the applicants as set out in the Rules. The Minister seeks the amount of $6,825.00 which is the amount specified in the Rules. 

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Frank Turner

Associate: 

Date:  16 April 2015