MZYOP v Minister for Immigration

[2015] FCCA 807

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZYOP v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 807

Catchwords:
MIGRATION – Independent Merits Review – Protection (class XA) visa – implied freedom of political freedom – complementary protection – no jurisdictional error.

PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed.

Legislation: 
Federal Circuit Court Act 1999, s.17A
Federal Circuit Court Rules 2001, r.13.10

Migration Act 1958, ss.91R(1), 476

Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010]HCA 28

Applicant: MZYOP

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: RAUL MENDOZA IN HIS CAPACITY AS INTERNATIONAL TREATIES OBLIGATIONS ASSESSOR

File Number: SYG 588 of 2015

Judgment of: Judge Street

Hearing date: 2 April 2015

Date of Last Submission: 2 April 2015

Delivered at: Sydney

Delivered on: 2 April 2015

REPRESENTATION

Counsel for the Applicant: Mr J. Gormly

Solicitors for the Applicant: Labour Pains Legal

Solicitors for the Respondent: Ms C. Hillary
DLA Piper

ORDERS

1. The proceedings be summarily dismissed.

2. The Applicant pay First Respondent’s costs fixed in the sum of $1367.

   .

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 588 of 2015

MZYOP

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

RAUL MENDOZA IN HIS CAPACITY AS INTERNATIONAL TREATIES OBLIGATIONS ASSESSOR

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ in respect of the Court’s jurisdiction under s.476 of the Migration Act 1958.  The grounds identified in the application are as follows:

   That the International Treaties Obligations Assessment (ITOA) was not made according to law because the second respondent Assessor did not afford the applicant procedural fairness in that:

   1. The Assessor failed to consider or address claimed made by the applicant of non-refoulement obligations as a Shia in relation to the safety and the reasonableness of his relocation to major cities within Pakistan outside of Baluchistan.

   2. The Assessor’s assessment of the applicant’s claims of non-refoulement obligations in relation to his relocation to major cities within Pakistan outside of Baluchistan was reasonable and or irrational.

2. The application identifies the last sentence:

   The Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceeding.

3. The Court raised with counsel for the applicant its concern that the matter was not one which appeared to disclose an arguable case.  In considering exercising the summary disposal powers under s.17A (Federal Circuit Court Act 1999) and r.13.10 (Federal Circuit Court Rules 2001), I take into account the principles and caution in Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28.

4. Mr Gormly of counsel skilfully sought to identify an error based on the reasoning of the assessor on page 21:

   …While I concede that there are high levels of generalised and sectarian violence in Pakistan, I place weight on the DFAT report that indicates that there is no specific targeting of Hazaras as opposed to any other minority ethnic group. I also note that the claimant has had no specific adverse incidents occur to him personally for any reason when he was residing in [Q]. I also note that his family members are still in [Q] and he has not claimed that they have experienced any significantly serious harm in the past while the claimant is outside Pakistan. This indicates that the claimant and his family did not have a profile that would attract adverse attention. Given all of these, I am not satisfied that there is a real chance that the claimant would face harm for a Convention reason in the foreseeable future if he were to live in major cities outside of [Q].

5. It is clear from the finding made by the assessor at the bottom of page 21 that the assessor took into account both the Shia religion and the Hazara ethnicity in finding that the applicant could relocate to Pakistan. The assessor said:

   On balance, I consider that the claimant could live and work elsewhere in Pakistan, particularly in major cities where there are significant number of people who are Shia and of Hazara ethnicity. This being the case, internal relocation is a viable option for the claimant. As he can avail himself of effective protection through relocation, his of fear of persecution for a Convention reason is not well-founded.

6. This was a case where the applicant lied at the time of initial interview and pretended that he was an Afghan.  The assessor made adverse findings in relation to the credit of the applicant by reason of those circumstances and, relevantly:

   I accept that the claimant provided the Department false information about his identity when he sought refugee status assessment (RSA) in 2010. I further accept that the identity he presented in this ITOA assessment is his true identity. I do not accept however, the reason for presenting a false identity to the Department in 2010.

   The claimant asserted that he was forced to provide false information about himself because he was fearful that telling the truth would jeopardise his brothers and his family back in Pakistan. He insisted that he was fearful that if the Pakistani government learned that he sought refugee protection in Australia, his brothers who were working in Pakistani government agencies might be seriously harmed or killed. He first declared that the identity he provided was not accurate when the Independent Merits Review decision was handed down to him. At that time, he told the Departmental officer that he was forced to lie about his identity because he used to work for the Pakistani government and revealing his true identity would endanger him. However, in subsequent interviews with the Department, he said that he lied because he was concerned about the safety of his brothers. The inconsistency of the reason for his decision to lie made his explanation unconvincing.

   I also do not accept that if he were truly fearful of returning to Pakistan, he would I conceal that fear and instead present his fear as relating to Afghanistan. I am not satisfied that he was convinced that telling the truth about what country he feared returning would worsen his situation. Otherwise, there was no point in seeking protection.

   After examining the claimant's RSA application and his statements in this ITOA assessment including his responses at interview, I have formed the view that he did not have any subjective fear in respect of Pakistan when he left that country. I find that he had the impression that his chance of obtaining refugee protection would be enhanced if he claimed to be an Afghan national fearing persecution in Afghanistan. Whatever his real intention is for now admitting that he is a Pakistani national fearing persecution should he return to Pakistan, I find that he did not have a fear of persecution in Pakistan when he left that country.

   I also find the claimant to have exaggerated in presenting his claims. I do not accept f that he was convinced that the Pakistan government was involved in a plot to have him killed. There is no credible information to support his claim that his assignment to [D] was a part of a scheme hatched between the government and the extremists in Pakistan to have him eliminated. Moreover, I consider this claim to be so compelling that it is implausible for the claimant to have this deliberately concealed when he sought Australia's protection through the RSA process.

   In conclusion, I find that the claimant did not hold a subjective fear when he left Pakistan for Australia. However, this does not preclude the possibility that he may have a well-founded fear of being persecuted or face significant harm should he return to Pakistan in the foreseeable future.

7. It is clear in the relation to the issue of relocation that the Assessor took into account the Shia religion of the applicant as appears on page 20:

   Relocation

   The claimant's fear must be well-founded in relation to the country as a whole. If there are parts of the country in which the claimant would be safe from persecution, and the claimant can reasonably be expected to relocate to those parts, then he will not have a well-founded fear of persecution in relation to the country as a whole. When assessing what is reasonable, the majority of the High Court in SZATV held it means 'reasonable in the sense of practicable', but will also depend on the particular circumstances of the claimant and the impact of relocation on the claimant.

   According to DFAT, section 15 of the Pakistani Constitution guarantees freedom of movement throughout the country. Due to the county's size and diversity, persons seeking refuge from harassment and violence can enjoy a certain degree of anonymity through relocation. Shias have available options to relocate to areas with relative safety. In respect of Hazaras, ‘DFAT assess that, because of the countries’ size and diversity, in most cases, there are options available for members of the Hazara community to be able to relocate to areas of relative safety elsewhere' in Pakistan. To illustrate this point, DFAT reported that 'some Hazaras in [Q] and Parachinar have relocated to other parts of Pakistan, including Lahore and Karachi, although the journey and the destinations were not without their own security risks. To mitigate these risks, many Hazaras are able to afford the cost choose to fly from [Q] or Parachinar to other destinations in Pakistan.’

8. In these circumstances, there is no substance in the alleged ground 1 of the application, as it does not identify any want of procedural fairness by the assessor referable to a decision-making process by the Minister.  Nor does ground 2 identify any arguable jurisdictional error in the nature of a denial of procedural fairness.  Further, I am satisfied that the assessor’s findings in relation to relocation were open and cannot be said to lack an evident and intelligible justification.  In those circumstances, there is no arguable ground disclosed by the application.  The application is doomed to failure.  I am clearly satisfied the proceedings have no reasonable prospect of success.  The proceedings are summarily dismissed.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  9 April 2015