MZWHP v Minister for Immigration
[2005] FMCA 1530
•18 October 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWHP & ORS v MINISTER FOR IMMIGRATION | [2005] FMCA 1530 |
| MIGRATION – Whether Tribunal failed to consider integer of claim to refugee status – whether finding that applicant could relocate independent of other findings. |
| Migration Act 1958 |
| Applicant: | MZWHP & ORS |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 552 OF 2004 |
| Judgment of: | Phipps FM |
| Hearing date: | 2 May 2005 |
| Last Submission: | 2 May 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 18 October 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr Gibson |
| Solicitors for the Applicant: | Victorian Legal Aid |
| Counsel for the Respondent: | Mr Gray |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The Applicants pay the Respondent’s costs fixed in the sum of $6,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 552 OF 2004
| MZWHP & ORS |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicants, husband, wife and children, are all members of the one family. For convenience, the first applicant, the husband, is referred to as the applicant. The applicant is a Mohajir from Karachi, Pakistan, and a supporter of the Mohajir Qaumi Movement (MQM). He claims he has a well founded fear of persecution, by the police or state authorities of Pakistan, by reason of his support for the MQM. He claims he has a similar fear of persecution by supporters of a rival faction of the MQM. The applicants applied for protection visas. The applications were refused and the refusal confirmed by the Refugee Review Tribunal.
The issue, raised by the applicant, is whether the Tribunal failed to deal with one part of the applicant's claim, that is, his claim of fear of persecution by non state authorities, the supporters of a rival faction of the MQM. The respondent then argues, even if the applicant’s argument is correct, the Tribunals finding that the applicant can relocate is an independent finding. There is an issue about delay.
Chronology
The applicant first arrived in Australia in late 1989 on a student visa. He returned to Pakistan in 1995 for a visit. The application for a protection visa was lodged on 9 February 1996. A delegate of the Minister refused to grant the visa on 24 December 1996. An application to the Tribunal was lodged on 15 January 1997. On 22 September 1997 the Tribunal affirmed the delegate's decision not to grant visas.
On 17 October 1997 a request was made to the Minister to exercise his discretion to substitute a more favourable decision. On 12 March 1998 the Minister decided not to consider exercising that power. The applicants joined the Lie class-action on 16 July 1999 and the Muin class-action in 2000.
The applicants filed an application for constitutional relief in the High Court. It was remitted to the Federal Court and on 30 April 2004 Emmet J. refused the application for an order nisi. The application in the Federal Magistrates Court was filed on 18 May 2004.
The tribunal's decision
The tribunal accepted that there had been a protracted and violent struggle between Mohajirs and rival ethnic groups. The Tribunal was satisfied that the applicant was involved in activities at his mosque as he claimed. There were two rival groups at the applicant’s mosque.
The Tribunal referred to country information which showed diminishing civil strife involving Mohajirs. It concluded that the prospect of the applicant being persecuted for his support of the MQM is remote. He did not face a real chance of persecution in the future.
The tribunal went on to say that it was required, in any event, to assess the risk to the applicant in his country of nationality as a whole, rather than just in relation to Karachi. It found that if he fears for his safety in Karachi, or elsewhere in the state of Sindh, it would not be unreasonable for him to relocate to another part of Pakistan, such as where his wife comes from, and where country information has long indicated that there is no real chance of harm from convention reasons.
The applicant's arguments
The amended application asserts the ground that the tribunal exceeded its jurisdiction and/or constructively failed to exercise jurisdiction. The particulars are:
It failed to deal with an integer of the First Applicant's claims of fear of persecution on the grounds of actual or imputed political opinion by non state agents being the MQM and/or the Altaf faction of the MQM by reason of his imputed association with the Haqiqi faction, and the MQM mosque faction led by Alem (or Alem) by reason of his membership of an opposing politico/religious group in the mosque-the Barawi.
The applicant’s contentions referred to many authorities for the proposition that a failure to deal with a claim or integer of a claim is a jurisdictional error. The principle is well-established. It is not necessary to refer to the authorities.
The claim the applicant put forward, at the time it was dealt with by the delegate, was that as a Mohajir from Karachi and a supporter of the Mohajir Qaumi Movement (MQM), he was liable to persecution by the police and state authorities. This was made in the personal statement accompanying a submission made by the applicant’s solicitor.
When he applied for review to the tribunal the applicant submitted an additional statement. It is this statement which contains the claim which the applicant now argues was not considered by the tribunal. The statement refers to his support for MQM and his last visit to Karachi. The applicant says in the statement that his brothers told him the police had come searching for him and for evidence that could prove his involvement with MQM. This is a reference to the claim of persecution by state authorities which had been made earlier.
The additional claim which is argued the tribunal did not deal with is this. The applicant says in the statement that the MQM Naz-4 unit was searching for him. The applicant had visited friends and had dinner with them. He said that some of these people were members of Haqaqi. He said that there was conflict between MQM and the Haqaqi. MQM believed the Haqaqi was spying for the police.
He then said, that after he left Karachi the MQM Naz-4 unit visited his home in search of him, but each time his brother told them they didn't know about his whereabouts. They did not believe this and had "hard talk" with his brother. Later another brother was attacked on his way back from mosque after late night prayer. He was badly hurt. Youths visited his other elder brother at the family business asking about the applicant. A few days after that there was a suspicious fire at the family's premises.
Claim of persecution by non state agents
In its reasons the tribunal said:
The Tribunal notes that the applicant was not an active member of the MQM. He voluntarily returned to Pakistan at the height of a crisis (and on two earlier occasions). He never experienced persecution for any Convention ground and was each time able to depart the country legally on his own passport. In considering all the circumstances the Tribunal is not satisfied that the applicant was ever sought by the authorities for any Convention reason. It is apparent that the authorities had ample opportunity to take action against him if they had wished to do so.
In view of the applicant’s low political profile, his lengthy absence from Pakistan and the absence of persecution for any Convention reason in the past, the Tribunal finds that the applicant does not face a real chance of persecution in the future for any Convention ground. While it may be the case that the police still have unresolved matters concerning certain MQM supporters, there is no basis for a finding that the applicant is among them.
Due to the belated nature of the applicant’s claim concerning an attack on his brother by MQM members, and in the absence of a satisfactory explanation for that delay, the Tribunal finds that the claim lacks credibility. The Tribunal does not find it believable that the applicant would omit for so long such a central claim if it were true. His explanation that he sought to suppress that claim because it is painful to remember lacks credibility, especially in view of his capacity to outline earlier claims concerning more violent actions directed at him
The argument for the applicant accepts that the first of these two paragraphs deals with the claim of persecution by state agents and does not challenge that finding. The argument is that the third paragraph does not deal with the claim of persecution by non state agents. The argument is that it rejects the applicant's claim of an attack on his brother but goes no further than that.
The argument for the respondent is that this paragraph, read in the context of the Tribunal’s reasons, does deal with the new claim. Properly read, the submission is, the paragraph is a rejection of all the applicant says about MQM Naz4 unit members searching for him.
In describing the applicant's claims under the heading "Background and Claims" the tribunal said:
He said that when he returned to Pakistan for a visit in 1995 there was turmoil in Karachi. He claims that he witnessed the aftermath of a massacre; there were several attacks on the mosque; Mohajir Qaumi Movement (MQM) supporters were being targeted; and that on one occasion police searched his house, caused damage to it and asked his brothers about him. He said that he was a supporter of the MQM, but he was not an active member. He said that some of his rivals from the mosque were active as MQM supporters and that the MQM was disgruntled with him and other family members because they did not become actively involved with it. He claims that he may be targeted by members of the Altaf Hussain faction of the MQM and claims that a brother was bashed by MQM members. He said that he learned of the attack on his brother a few months after its occurrence in January 1996, but he did not provide details of it earlier as he had suppressed some of his worst memories. He added that the police may still have some outstanding cases against MQM supporters
In this paragraph the Tribunal identifies the two separate claims being made by the applicant, one of persecution by state agents, and the other of persecution by non state agents, the Altaf Hussain faction of the MQM. A fair reading of the three paragraphs from the tribunal's decision is that the first deals with the persecution by state agents claim and the third one deals with the non state agents claim. In this third paragraph the Tribunal describes it as "a central claim". A fair reading of the paragraph is that the Tribunal rejects the claim that MQM Naz-4 unit was searching for him. The Tribunal refers specifically to the claim of an attack on the applicant's brother. The Tribunal found that the whole of the claim lacks credibility, not just the claim of an attack on his brother.
The Tribunal has identified the claim of persecution by non state agents. It has dealt with the claim by rejecting its factual basis. It has not failed to deal with it.
Relocation finding
The tribunal found that if the applicant fears for his safety in Karachi he could move elsewhere in Pakistan. The respondent argues that this was an independent ground for rejecting the applicant's claim for refugee status, not affected by the applicant's argument.
The applicant's argument is that his evidence in the Tribunal hearing was that he feared that the opposing faction in the MQM had influence across Pakistan and so he had the same fear if he relocated. The argument is based on two extracts of his evidence at the Tribunal hearing. In the first, at pp.13-14 of the transcript of the hearing, the applicant describes the MQM split into two groups and how members of the opposing group were targeting and spying on him. It is evidence of what he claimed happened to him in Karachi. The second is at p.24 where he says that MQM has a very strong information system and that if he changed localities they would find him.
The tribunal said this:
The applicant in this case has a tertiary education and significant work experience. He is able to communicate in Urdu and in English, and is relatively young. He does not have a high profile as a MQM activist such that would attract the interest of the authorities, especially outside Karachi. If he fears for his safety in Karachi or elsewhere in Sindh it would not be unreasonable to expect him to relocate to another part of Pakistan, such as Peshawar where his wife hails from, and where country information has long indicated that there is no real chance of persecution for a Convention reason.
The tribunal rejected the evidence by which the applicant made a specific claim of an attack on a family member and therefore fear by him by non state agents, the opposing MQM faction. The Tribunal has relied on country information as part of its finding that he could relocate. It has not referred specifically to his evidence at page 24 of the transcript of the hearing, but the applicant's evidence goes no further than to state a fear. The applicant did not give evidence of occurrences in Peshawar or elsewhere where the MQM had harmed people or threatened them with harm. The tribunal was entitled to rely on the country information in making a finding of fact. It has not made specific reference to the applicant's evidence of fear of the MQM factions influence across the country. Given the unparticularised nature of the claim, that is not surprising.
The Tribunal rejected the factual basis for the applicant’s claim of persecution by non state agents not just in Karachi, but generally in Pakistan. That being so, the finding that the applicant could relocate if he had a fear of persecution in Karachi is independent of the finding that he did not have a fear of persecution by non state agents in Karachi. It is an independent ground.
Delay
It is unnecessary to deal with the claims about delay and whether the applicant needed to make an application for extension of time. The substantive attack on the tribunal's decision fails. Even if extension of time is necessary, Connecticut was granted, the application still is dismissed.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Phipps FM
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