MZAIR v Minister for Immigration

[2015] FCCA 1963

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAIR & ORS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1963

Catchwords:
MIGRATION – Refugee Review Tribunal – whether tribunal failed to consider claims – whether tribunal failed to consider complementary protection – whether tribunal’s decision illogical or irrational.

First Applicant: MZAIR

Second Applicant: MZAIS

Third Applicant: MZAIT

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: MLG 1492 of 2014

Judgment of: Judge Riley

Hearing date: 17 June 2015

Date of last submission: 17 June 2015

Delivered at: Melbourne

Delivered on: 17 June 2015

REPRESENTATION

Counsel for the first applicant: The applicant appeared in person

Solicitors for the first applicant: The applicant was not represented

Counsel for the second applicant:

Solicitors for the second applicant:

Counsel for the third applicant:

Solicitors for the third applicant:

Advocate for the first respondent:

No appearance

No appearance

No appearance

No appearance

Mr Ned Rogers

Solicitors for the first respondent: Australian Government Solicitor

Counsel for the second respondent: No appearance

Solicitors for the second  respondent: Australian Government Solicitor

ORDERS

1. The application filed on 23 July 2014 be dismissed.

2. The first and second applicants pay the first respondent’s costs, fixed in the sum of $6,000.

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1492 of 2014

MZAIR

Applicant

MZAIS
Second Applicant

MZAIT
Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction

1. This is an application to review a decision of the Refugee Review Tribunal (“the tribunal”). The first applicant is the husband of the second applicant, and the third applicant is their child. The first applicant appeared today but the second and third applicants did not. The applicants are Pakistani. The first applicant made the substantive claims. The second and third applicants were members of his family unit.

2. The first applicant came to Australia on 5 February 2010 on a student visa. The second applicant joined him in Australia on 10 July 2011.  The third applicant was born in Australia on 30 December 2011. On

   
   

   15 March 2013, they applied for protection visas.  The delegate refused that application on 28 November 2013. The applicants then applied for review by the tribunal.

The applicants’ claims

1. The applicants claimed that, when they returned to Pakistan to visit family, the first applicant received death threats from Lashkar-e-Islam, which is a fundamentalist group connected with the Taliban. The applicants claimed that, because the first and second applicants had studied in Australia, Lashkar-e-Islam threatened to kill them if they returned to Australia.

2. The first applicant said in a statutory declaration that he and his family lived in a small town outside Peshawar. The first applicant said that he returned to Pakistan to visit his family from 23 February to

   
   

   3 May 2011. He said that, on this occasion, he received a letter from Lashkar-e-Islam warning him not to return to Australia and seek education from non-believers. He said that the letter told the first applicant that, if he did not comply with the demands, he would be killed. The first applicant said in his statutory declaration that he did not treat the threat as serious and returned to Australia.

3. The first applicant, in February 2012, stopped studying in Australia.  He said this was to permit his wife to study. On 26 November 2012, the first applicant again went to Pakistan to visit family. He claimed that, on 14 December 2012, he was visited by members of Lashkar-e-Islam.

   
   

   He said that they told him that he had disregarded their earlier warning. He claimed that they knew the first applicant’s wife was studying in Australia amongst men. The first applicant claimed that the Lashkar-e-Islam members said that they would kill the first applicant and his family if they tried to return to Australia. The first applicant claimed that he arranged to leave Pakistan undetected, with his family, and decided to apply for asylum. They returned here on 10 January 2013.

4. The applicants also included in their submissions to the tribunal evidence of psychological difficulties. The information included a psychologist’s report saying that the first applicant had a diagnosis of

   
   

   post traumatic stress disorder. 

The Tribunal’s reasons

1. The tribunal did not accept that the first applicant was a credible witness. The tribunal did not accept that the first applicant had been targeted by Lashkar-e-Islam or threatened. The tribunal considered that it was implausible that the first applicant would not have taken seriously the first threat that Lashkar-e-Islam was said to have made against him.

2. The tribunal spelt this out in the first paragraph on CB354, which reads as follows:

   Country information set out above and that referred to in the delegate’s decision indicates that LeI is a very violent organisation. It is not plausible or credible in the circumstances that the applicant would not take a threatening letter from them seriously (as stated in his statutory declaration) and that after receiving a threatening letter warning him not to return to Australia and to participate in education that he would ignore this and then return to his home area in Pakistan with his wife and new born child. It is even more implausible and less credible that having disobeyed this threat, that the LeI would visit him and give him a further warning without attempting to harm him for his blatant disobedience. At the hearing the applicant stated that his wife was homesick and they could not live without their parents and that he took a chance but it was not a good idea. The agent has referred to Tribunal decisions whereby the Tribunal has accepted that applicants have faced multiple threats from Taliban groups and submitted that the applicant was not harmed because he promised he would follow their demands. I am not obliged to follow the reasons in other Tribunal decisions and I must come to my own conclusions on the country information before me and the individual circumstances of these applicants. I note that in 1308491 the Tribunal did not accept the threat letter as genuine whilst the cases involved claims of threatening calls made to the applicants’ fathers. I have also considered the country reports cited by the agent and I accept that Taliban groups do issue warnings to potential victims. However, I do not accept in the case before me the LeI would fail to take any serious action against a person who had so clearly ignored their precise warning as claimed. I accept that people can be homesick but in all the circumstances, I do not accept that the applicant would return to his home area with his family if such a threat from such a violent organisation had been made and he had in fact acted contrary to their demands.

3. The tribunal also did not accept that the first applicant or his wife would suffer any harm in relation to their education in the West. In that connection, the tribunal said in the second paragraph at CB354 the following:

   The applicant’s claims are also inconsistent with independent country information. The applicants and their agent have not submitted any country information which supports the contention that the applicant was initially targeted because he was undertaking education in a western country. The Tribunal has not identified any country information that men and women who have returned to Pakistan after studying in a Western country face particular difficulties upon return. Indeed, authoritative information from DFAT is that Pakistanis living abroad return to Pakistan frequently to visit relatives and are not at any increased risk because they have spent time in western countries. DFAT also stated that they had no evidence that indicates individuals would be subject to discrimination or violence as a result of them having spent time in western countries. This report accords with the earlier RRT research advice which did not identify any reports that returnees to Pakistan from Western countries face

   
   

   ill-treatment simply by reason of being returnees from the West. When the substance of this information was put to the applicant for comment at the hearing he stated that the Taliban were against his wife being educated especially in a Western society and he referred to the famous case of Malala Yousafzai. I accept that Taliban groups are hostile to women’s education, however the applicant has claimed that LeI were threatening him in April 2011 on the basis of him studying in a Western country. This was prior to his wife joining him in Australia in July 2011 to study. The evidence before me does not support his claims to have been initially targeted by LeI as claimed and detracts from the credibility of his claims that he and his wife were subsequently targeted when they returned to Pakistan in 2012.

4. The tribunal did not accept that the first applicant had been threatened at all by Lashkar-e-Islam. The tribunal said at paragraph 45 of its reasons: 

   Given my fundamental concerns with the applicant’s credibility, I do not accept that in April 2011 he received a threatening letter from LeI warning him that he must not go back to Australia and seek education from disbelievers. I do not accept that he did not take the letter seriously and ignored the threat and did not tell anyone in his family. I do not accept that in December 2012 he was confronted by two masked men armed with AK-47s and ammunition belts who said they were from LeI. I do not accept that they said he had ignored the letter and returned to Australia and that they had heard that his wife had also gone to Australia and was studying amongst men which was against Islam. I do not accept that they said the applicant and his wife could not return to Australia or they and their family would be killed. I do not accept that the applicant agreed to not return and they said this was their final warning. I do not accept that his brother told him in April 2014 that two bearded men had asked about him. I do not accept in the same month in 2014, two armed men approached the applicant’s friend and asked about the applicant. I do not accept that they said they were from LeI and they had warned the applicant before not to go to Australia. I do not accept that they told his friend that the applicant should cease his wife’s study and was staying amongst the unbelievers. I do not accept that the applicants are or were of adverse interest to LeI, any other Sunni extremist group or anyone else for any reason including that they have both been educated in Australia.

5. In relation to the second applicant’s education, the tribunal said at paragraph 49 the following:

   Whilst I accept that Taliban groups are hostile to the education of women, the above country information does not indicate that persons in the applicants’ positions are being targeted because they are returning from Western countries after studying abroad. The applicants have not been harmed or threatened in the past (including on their return visit to Pakistan in 2012 after studying in Australia) by anyone. The applicant wife in fact was able to obtain a B.A. (Hons) in Psychology at the Peshawar City University of Science and Information Technology and no claim has been made that she was ever targeted or harmed by anyone because of this despite this being such a significant tertiary qualification. Based on the country information before me and their individual circumstances, I find that the applicants do not face a real chance of persecution, now or in reasonably foreseeable future from LeI, other militant groups or anyone else on account of the range of Convention grounds advanced by their agents or for any reason outside the Convention. These advanced Convention grounds include, actual or imputed political opinion, religion and membership of particular social groups consisting of “Pakistani students from north Pakistan studying in a Western country and perceived by the Taliban to be traitors and disbelievers”, “Sunni Muslims who have received education in Australia and live in Australia”, “returnees from the West” and “supporters of the education of women”.

6. Ultimately, the tribunal did not accept that the applicants faced serious harm under the Refugees Convention, or a real risk of significant harm under the complementary protection regime. The tribunal accepted that the first applicant may have post-traumatic stress disorder but did not consider that that was for the reasons he had claimed.

Representation

1. The applicants were not represented at the hearing before this court. However, they were represented at the time that the application was filed.

Ground 1

1. The first ground of review in the application filed on 23 July 2014 is:

   The Tribunal committed an error of law by failing to consider an integer of the Second Applicant’s claim and to assess whether her education in Australia placed her at risk of persecution upon return to Pakistan.

   Particulars

   (a)In paragraphs 44 and 49 of its Statement of Decision and Reason (“the Decision Record”) the Tribunal made a finding that Taliban groups are hostile to women’s education.

   (b)In paragraph 63 of its Decision Record the Tribunal did not accept the Second Applicant has a well-founded fear of persecution or there is a real risk that she will suffer significant harm in the hands of the Taliban or other religious extremist groups or individuals.

   (c)In the alternative, the Tribunal did not accept (paragraph 50 of the Decision Record) that there are substantial grounds for believing that as a necessary and foreseeable consequence of her being removed from Australia to Pakistan that there is a real risk that she will suffer significant harm in the hands of the Taliban or religious extremist groups or individuals.

2. Particulars (b) and (c) indicate that the complaint is that the tribunal did not accept certain matters. It is open to the tribunal to not accept factual assertions made by applicants. The tribunal has power to resolve claims contrary to an applicant’s argument and that does not, in itself, constitute jurisdictional error. There would have been a jurisdictional error if the tribunal had, indeed, failed to consider whether the second applicant’s education in Australia placed her at risk of persecution. However, it is clear from the passages cited above that the tribunal did consider that issue. 

3. The tribunal accepted that the Taliban and associated groups are hostile to the education of women. However, as set out in paragraph 49 of the tribunal’s reasons for decision, the tribunal did not accept, on the basis of country information, that the second applicant faced persecution for that reason. Also, in paragraph 50 of the tribunal’s reasons for decision, for the same reasons, the tribunal did not accept that the second applicant faced significant harm. For those reasons, I do not accept that the tribunal failed to consider the issue of whether the second applicant’s education in Australia placed her at risk of persecution upon return to Pakistan. This ground is not made out.

Ground 2

1. The second ground of review in the application filed on 23 July 2014 is:

   The Tribunal has failed to deal with claim squarely raised under complementary protection that the Second Applicant may face significant harm amounting to cruel or inhuman treatment or punishment or degrading treatment or punishment in the hands of the Taliban or religious extremist groups or individuals who are against western educated Muslim women.

   Particulars

   (a)The Second Applicant repeats the particulars to ground 1 and relies upon them cumulatively.

2. The tribunal addressed this claim in paragraph 50 of its reasons for decision as follows:

   Considering the country information and their individual circumstances, I find that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to Pakistan that there is a real risk that they will suffer significant harm on these bases.

3. Paragraph 50 draws on the discussion in paragraphs 44-49 of the tribunal’s reasons for decision, under the heading, “Fear of

   
   

   Lashkar-e-Islam and Western education claims”. It seems to me that the tribunal did, in fact, deal with the complementary protection issue, albeit very briefly, and for the same reasons that it rejected the Convention claims. This ground is not made out.

Ground 3

1. The third ground of review in the application filed on 23 July 2014 is:

   The Tribunal engaged in legal error by coming to a conclusion that was so illogical or irrational or unreasonable that no reasonable decision maker could have reached it.

   Particulars

   (a)In paragraph 44 of its Decision Record the Tribunal made a finding that Taliban groups do issue warnings to potential victims.

   (b)The Tribunal engaged in illogical or irrational speculation that the First Applicant had not received a warning letter or a verbal warning from the Taliban because they would have taken serious action against him instead of warning him.

2. The applicants claim that the tribunal’s decision was illogical because it involved speculation that the first applicant had not received a warning letter because, if he had, the Taliban would have taken serious action against him instead of warning him a second time.

3. As set out above, the tribunal, in the first paragraph at CB354, set out its reasons for not accepting that the first applicant had been threatened as he claimed “by Taliban groups”. Matters of plausibility and credibility are almost uniquely matters within the purview of the tribunal. In any event, it does not appear to me that the tribunal was illogical or irrational, in the required sense, in drawing the conclusion that the applicant had not been threatened as he claimed. This ground is not made out.

Conclusion

1. I am not persuaded that there is any jurisdictional error in the tribunal’s reasons for decision or decision-making process. Accordingly, the application will be dismissed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate: 

Date: 20 July 2015