MZXJN v Minister for Immigration
[2006] FMCA 1104
•28 July 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXJN v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1104 |
| MIGRATION – Refugee Review Tribunal – whether tribunal member misunderstood the test under s.91R(1)(b) of the Migration Act – failure by applicant to identify that he was part of a persecuted social group – failure by applicant to identify specific harm – application dismissed. |
| Applicant: | MZXJN |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 527 of 2006 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 28 July 2006 |
| Date of last submission: | 28 July 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 28 July 2006 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the Respondent: | Mr Knowles |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
There be leave to amend the first respondent’s name to read ‘Minister for Immigration and Multicultural Affairs’
The application filed on 20 April 2006 be dismissed.
The Applicant pay the first respondent’s costs, fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 527 of 2006
| MZXJN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application filed on 20 April 2006 seeking a review of the Refugee Review Tribunal decision of 17 March 2006. That decision affirmed the decision of the delegate of the Minister refusing a protection visa.
In his application the applicant sets out the following ground for review:
That the member misunderstood the test of section 91R(1)(b) of the Migration Act and made an incorrect decision.
The applicant did not set out any particulars of the ground in his application nor has he filed an amended application or contentions of fact and law.
In his supporting affidavit sworn 20 April 2006 the applicant says:
My reasons for seeking a protection visa are genuine on the basis of:
1.Belonging to a particular social group for whose members it is very difficult to gain employment or establish any sort of business in Pakistan. Also, the Govt. of Pakistan does little to remove the persecution against my social group.
2.Repayment of money I borrowed to come to Australia is being sought by my lender. If I have to return to Pakistan without having the chance to earn enough to pay my debt then based on threats to the health and well being of me and my family, which I have already received from the lender, I fear serious harm to me and other family members.
Background
The applicant is a 29-year-old male citizen of Pakistan. On 25 July 2005 he arrived in Australia on a temporary business visa. On 6 September 2005 he applied for a temporary protection visa.
In his visa application the applicant claimed at question 40 that if he were to return to Pakistan he faced a real chance of persecution because of his membership of a social group who were identified as those who cannot obtain work and are persecuted by the impersonal forces of a country whose government is failing to solve the desperate problems of poverty.
In his response to question 43 of the visa application the applicant claimed that he could not return to Pakistan as his social group can do little to overcome the forces "which are holding us in poverty". He claimed that if he were to return to Pakistan, he would not be able to support his large extended family.
On 18 October 2005 a delegate of the minister refused to grant a visa to the applicant. On 15 November 2005 the applicant applied to the tribunal for a review. The applicant gave oral evidence before the tribunal on 16 January 2005. He was assisted by a friend and gave evidence with an interpreter.
On 17 March 2006 the tribunal handed down its decision affirming the refusal of the delegate to grant a visa. In making its decision the tribunal considered the applicant's claims and found:
The applicant initially claimed that he would not be able to obtain work if he returns to Pakistan. At the hearing it emerged that by this the applicant meant that he would not earn a sufficient income in Pakistan to enable him to provide for his family. The Tribunal is satisfied that the applicant’s oral evidence during the hearing represents his claims to refugee status and he is not relying on postulated social groups in his protection visa application and claims in his protection visa. The evidence advanced by the applicant for his claim was this his family had previously relied on the applicant and his father’s combined income from their work in Dubai. The applicant’s father had now retied and his family was now dependent on the applicant for an income. Although the applicant is a qualified mechanic and had previously worked in that trade in Pakistan, he would not be able to earn an adequate income as a qualified mechanic to support his family. He is now the sole provided for an extended family which includes his parents and unemployed siblings. Further, that he has spent his savings and borrowed money to enable him to travel to Australia.
On the evidence before it, the Tribunal is not satisfied that the applicant has been persecuted in the past for a Convention reason or for any other reason. It has considered whether there is a real chance that the applicant will be persecuted if he returns to Pakistan in the foreseeable future. While it may be the case that the applicant is the sole provider for his family and that employment opportunities may not generate an adequate income for his family – the Tribunal is not satisfied that this amounts to serious harm as in s.91R(1)(b) or that it would be for a Convention related reason. The applicant would be able to obtain employment in his chosen occupation and earn the wage for a qualified mechanic. That this wage would not be sufficient to provide an adequate income for his family and that he has to repay debts on return is regrettable but his capacity to subsist is not threatened (s91R(2) of the Act, page 3). The Tribunal is therefore not satisfied on the evidence before it that there is a real chance that the applicant will be persecuted if he returns to Pakistan in the foreseeable future. It does not accept that the applicant has a well-founded fear of Convention-based persecution.
Ground of Review
The applicant seeks a review on the basis that the tribunal member misunderstood the test in s.91R(1)(b) of the Migration Act 1958. Section 91R of the act states:
91R Persecution
(1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
….
(b) the persecution involves serious harm to the person; and
In this case the tribunal had regard to the applicant's financial circumstances. It identified how much he would be able to earn and it identified that it was not sufficient to support his extended family. However, his extended family includes brothers and sisters.
There is nothing to indicate that as a single man, or a man with a wife alone, he would not be able to live on the income he can earn in Pakistan.
It is for the tribunal to determine what amounts to serious harm. I see no error in the way that the tribunal has approached this question in this case. This was a question of fact for the tribunal. The tribunal also found that it was not satisfied there was any convention-based reason that the applicant relied on.
In the case before the tribunal and the delegate it does not appear that the applicant identified that he was part of a particular social group that were said to be persecuted. Rather he relied upon the claim of widespread poverty in Pakistan. It was therefore appropriate for the tribunal to conclude that he did not have a fear of persecution for a convention reason.
At the hearing today he identified to me that his main fear was what would happen to him if he did not repay the money he borrowed to come to Australia. He expected to be in Australia long enough to earn enough money to repay that debt.
It does not appear to me that this is a convention-based discrimination, that is, he is not being discriminated on the basis of his political opinion or membership of a particular social group or other convention reason. As a result it does not seem that this claim could succeed in the form that it has been presented by the applicant particularly as he has not identified any specific harm that he fears in this regard.
While it is a very unfortunate thing that people in poor countries are encouraged to borrow to come to Australia to make refugee claims that of itself is not the basis for a claim.
In the circumstances I must therefore refuse the current application.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
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