MZZAD v Minister for Immigration

[2013] FCCA 254

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZAD v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 254

Catchwords:
MIGRATION LAW – Application for judicial review of Refugee Review Tribunal’s decision – whether applicant could relocate to Lahore – applicant’s complaints about Refugee Review Tribunal’s relocation decision not made out – application dismissed.

Legislation:  

Migration Act 1958 (Cth), s.36(3)

SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18
NALZ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 140 FCR 270

Applicant: MZZAD

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1057 of 2012

Judgment of: Judge Burchardt

Hearing date: 20 March 2013

Date of Last Submission: 20 March 2013

Delivered at: Melbourne

Delivered on: 16 May 2013

REPRESENTATION

The Applicant: In person

Counsel for the Respondent: Mr Kaplan

Solicitors for the Respondent: Sparke Helmore Lawyers

ORDERS

1. The Application be dismissed.

2. The Applicant pay the First Respondent’s costs.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 1057 of 2012

MZZAD

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introductory

1. This is an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 24 July 2012.  The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a Protection (Class XA) visa. 

2. The applicant makes a number of criticisms of the Tribunal’s decision and says in summary that the Tribunal fell into jurisdictional error in the way in which it approached the issue of his possible relocation in Pakistan.  A number of criticisms are advanced of the way in which the Tribunal dealt with this aspect of the matter.

3. For the reasons that follow I do not think that these criticisms are made out and it follows that the application must be dismissed.

The Applicant’s claims

1. The applicant’s claims are articulated in a statutory declaration set out CB29-31.  They were expanded on to an extent in interviews before the delegate and before the Tribunal.  They were also articulated in certain responses from the applicant’s advisor to a set of notes forwarded to the advisor by the Tribunal, when it was discovered that not all the proceedings had been tape recorded.

2. In summary, the applicant claimed that his father, a retired major in the Pakistani army, became a Malik, or village elder, in his family’s village of Khadi.  His father encouraged villagers to support the army and the government against the Taliban, which led to threats against him from the Taliban in North Waziristan in March 2011.

3. The applicant claimed that in May 2011 the Taliban fired upon his father and one of his brothers and that his father told the applicant in about June 2011 that his life would be in danger if he returned to Pakistan.  The applicant’s articulated claim in his statutory declaration was that he would be killed if he returned to Pakistan because of his association with his father.

4. The grounds of application in the application filed 23 August 2012 simply state:

   1. Relocation

   2. Separated from family

   3. Not lived as a Pashtun

5. The affidavit filed in support adds nothing.

6. The applicant filed an affidavit however, on 1 October 2012, in which there is set out a one-page “Ground of Application”.

7. This makes a number of assertions.  It takes issue with the Tribunal’s finding that Lahore was a safe place for the applicant to relocate and asserts “this information is not based on fact”.

8. The grounds also assert that the applicant was unable to live outside of the tribal system and that the Tribunal misunderstood the amount of time he had lived there.

9. The grounds state that the Tribunal misunderstood the relocation issue in relation to Lahore which impacted upon his human rights insofar as he retained a desire to travel freely and meet his family whenever he wished.  Furthermore it was asserted that Lahore was not a safe place for protection applicants in the past and that the Tribunal failed to look into the “reasonable future”.

10. The applicant made various criticisms of other factual findings of the Tribunal, and in particular the failure of the Tribunal to give weight to the documents he had provided.

11. The applicant asserted that the Tribunal erred in assuming that accommodation would be readily available in Lahore.  He took issue with a finding of the Tribunal as to what Katchi abadis are and asserted that these were slums where it was not appropriate for the applicant to live.

12. The grounds conclude then:

    “The expectation is that i surrender my basic human rights to live with my family.  The tribunal fails to understand that i am a tribal person and practice the tradition and customs of waziri people.”

13. The applicant’s contentions of fact and law deal at paragraph 17 with the precise matters of criticism the applicant advances.  

14. I do not propose to set these out seriatim or even to endeavour to paraphrase them as in essence they repeat the matters already itemised as criticisms of the Tribunal’s decision.

The submissions made before the Court

1. The applicant, who represented himself, asserted that relocation was not possible for him.  He submitted that the evidence shows that Lahore is not a practical possibility for him to live in.  He said that the Taliban network is all over Pakistan.  He said that there were financial difficulties in living in Pakistan which was very different to being in Australia.  He said that if he had no links and family support he would not be able to relocate to Lahore.

2. Counsel for the first respondent essentially relied upon the written submissions filed.  It was submitted that the comparison between living standards between Australia and Pakistan was irrelevant to the relocation test.

3. The applicant in reply referred again to living conditions in Lahore.  He complained of being ordered in effect to live in a slum.  He said it would be preferable to return to his home and face death.

The Tribunal’s decision

1. The Tribunal briefly introduced the application and set out the relevant law.  At CB158-162, the Tribunal set out the claims advanced by the applicant and a summary of the proceeding before the delegate.

2. At CB162-176, the Tribunal set out its record of the two hearings that had taken place.  No submission has been advanced that the record is inaccurate in any material or significant way.

3. At CB178 and following, the Tribunal set out findings and reasons.

4. The Tribunal accepted that the applicant was a national of Pakistan. It also accepted that the applicant was not barred from protection under the Convention by s.36(3) of the Migration Act 1958 (“the Act”). 

5. The Tribunal then dealt with whether or not the applicant had a well-founded fear of persecution for a convention reason.  At paragraph 117 (CB179), the Tribunal said:

   “The applicant, on his own evidence, has only lived in Khadi for two years between 2002 and 2004, having spent the rest of his life in Rawalpindi, Peshawar or in Saudi Arabia.  He states that his family moved to Khadi subsequent to his arrival in Australia.  He states that his father is Malik of Khadi and this is his family’s traditional tribal home.”

6. The Tribunal gave no weight to the applicant’s Domicile Certificate, because such documents were readily available fraudulently in Pakistan (paragraph 119 - CB181).

7. Notwithstanding various reservations, however, the Tribunal accepted the applicant’s claim that his place of domicile and return, if required to do so, would be Khadi NWA (paragraph 121). 

8. It should be noted that the applicant has criticised this finding but not only is an error of fact not jurisdictional error, but the finding seems to me to accord with the matters recorded by the Tribunal as passing between the applicant and the Tribunal in any event.

9. In relation to the applicant’s fears in the event of return to NWA, the Tribunal found at paragraphs 125-128 (CB181):

   “The Tribunal accepts that the applicant’s father is a former Pakistani army officer and now a Malik who supports the government of Pakistan, and who may as a result, be perceived by extremist groups in NWA to oppose them.  The Tribunal also accepts that as Malik, part of his father’s role was to organise the village militia for the protection of the village.

   The Tribunal accepts that the applicant genuinely holds a fear of being killed if he were to return to Pakistan.  The Tribunal accepts, obviously, that being killed is a form of ‘serious harm’.  It accepts that the harm feared is systematic, in the sense that it is non-random, and discriminatory, because it would be directed at the applicant because of something perceived about him by those whom he claims would harm him.

   The Tribunal gives no weight to the ‘warning letter’ to his father or the document which purports to corroborate an attack on his father, as documents such as this are readily available fraudulently in Pakistan (see the country information recited by the delegate IRB Response to Information Request 18 June 2004). 

   The country information provided by the applicant and the Tribunal’s own sources, however, do support the proposition that tribal elders, such as Maliks and their family members, and tribal militia, who oppose extremist militia, may be targeted for killing in their home areas.”

10. At paragraph 130, the Tribunal accepted that the applicant faced a real chance of serious harm in NWA at the hands of extremist militant groups because of his relationship to his father and found his fear of serious harm was a well-founded fear of persecution within the meaning of the Convention.

11. The Tribunal went on to consider whether this fear of persecution in NWA extended to the entirety of Pakistan.  The Tribunal recorded at paragraph 137 (CB184):

    “When asked about whether the applicant could live elsewhere safely, his evidence was that he has his ID card, which identifies him as being from NWA.  He said if he went to Punjab or Sindh, people will recognise where he is from and they will not give him a job or let him live there.  He said he would be in danger from the police and that he would not be safe.  He went on to say that it would be difficult to live without his family support.  He also claims that there is a strong network between the various Taliban groups and they share intelligence.  He has not, however, provided any evidence to support the claim that a family member of a tribal Malik, such as his father, who opposes the Taliban in NWA, would be ‘tracked down’ and killed or otherwise harmed in a major conurbation away from NWA, or indeed away from FATA or KPP more generally.”

12. The Tribunal set out at paragraph 138 and following, relevant country information which included that Sunni Pasthuns from the FATA were not reported as being harmed by militant groups in Lahore (paragraph 138) and as to the security position in Lahore generally.  The Tribunal’s conclusion at paragraph 141 (CB189) was as follows:

    “Based upon the information before it, the Tribunal rejects the applicant’s claims that the Taliban or other militant groups that may target him in NWA have a network such that he will be tracked down by them in Lahore.  As discussed with the applicant, recent reports on the situation in Lahore do not disclose targeted killings of Pashtuns from tribal areas at all.  Whilst the applicant has produced evidence of a Taliban attack in Lahore recently, this was a targeted attack on police and the Tribunal is not of the view this suggests any increased risk of harm to the applicant.  On the basis of the country information, the Tribunal is not satisfied that the applicant faces a real chance of persecution in Lahore, either due to him being the son of a pro-government Malik from a village in North Waziristan, or on any other basis put, such as being perceived to be a spy, either because of his father’s political views or because he has lived in the West or conversely any other type of persecutory harm, either from private or state actors due to him being perceived to be a terrorist or Taliban, because he is a Pashtun from NWA.”

13. It should be noted that those findings in my view were open to the Tribunal in the light of the evidence, including the country information, before the Tribunal.

14. The Tribunal went on to consider whether it would be reasonable for the applicant to relocate to Lahore.

15. At paragraph 143 (CB189), the Tribunal recorded:

    “The factors raised by the applicant in opposition to relocation to Lahore are:

    a. that he would be unable to find accommodation or employment in Lahore;

    b. that he would face discrimination, including at the hands of state agencies, and may be locked up or face extortion;  and

    c. that it would be an unreasonable adjustment to expect him not to participate in his family and/or tribal life.”

16. The Tribunal noted at paragraph 144 that Lahore has grown into a ‘megacity’ which has substantial numbers of displaced persons from many parts of Pakistan.  The Tribunal noted that there was widespread unemployment in Pakistan and referred to economic conditions there in general.

17. The Tribunal referred at paragraph 149 (CB191) to the fact that people on lower incomes relocating to urban areas in Pakistan are likely to find/seek housing in the so-called katchi abadis, squatter settlements built illegally.

18. The Tribunal made the following finding at paragraph 150 (CB191):

    “The applicant is a young fit man.  He has demonstrated resilience in his capacity to find work whilst living in Australia.  As he demonstrated to the Tribunal at the second hearing, he can speak and understand English to a high standard as well as his own language.  He also said that he can speak Urdu.  In all the circumstances, weighing up the applicant’s particular attributes, and taking into account the country information, the Tribunal does not accept that the applicant would be unable to earn a living or access accommodation in Lahore.  In other words, the Tribunal is of the view that the applicant could lead a relatively normal life, like other young single men in Pakistan, in Lahore.

    The Tribunal rejects the assertion that the applicant would face discrimination or be targeted by the police or the army in Punjab, or the ISI or the CIA or ‘other agencies’.  He has not provided evidence to support such a claim and the evidence before the Tribunal about the current security situation in Lahore does not support such an assertion. 

    This leaves the argument that he would be forced to ‘live in a cage’ by not seeing his family or going to his tribal village.  This is an interesting argument.  It cannot be a reasonable adjustment, contemplated by the Convention, that a person should have to relocate internally by sacrificing one of the fundamental attributes of human existence which the specified grounds in the Convention are intended to protect and uphold.  In SZATV, the Tribunal had found that, although the applicant may not be able to work as a journalist (which had been the source of the feared persecution in his home region), internal relocation was a realistic option for him.  The High Court unanimously held that the Tribunal had, in effect, impermissibly expected him to move elsewhere, not work as a journalist, and live discreetly so as not to attract the adverse attention of the authorities in his new location, lest he be further persecuted by reason of his political opinions.

    On the other hand, where the suggested adjustment would not involve surrender of fundamental rights of the kind protected by the Convention categories, it may be open to the Tribunal to find that relocation is a reasonable option.  For example, in NALZ V MIMIA, where the applicant claimed a well-founded fear of persecution owing to suspected connections with a Sri Lankan separatist organisation, it was open to the Tribunal to conclude as it did that he could avoid future arrest by not selling electrical goods to Sri Lankan nationals.  Justice Emmett held that the suggested adjustment (ceasing to sell electrical goods) did not involve, in itself, surrender of fundamental rights of the kind protected by the Convention categories.

    If the applicant had lived all his life in his village, in the Pashtun way, the Tribunal may have been prepared to accept that requiring him not to enjoy that way of life, would amount to surrender of a fundamental right protected by the Convention categories, namely his race.  That is not the applicant, however.  He has only lived two years of his life in his village.  The rest of his life he has spent travelling both within and without Pakistan with his family, and most recently, he has been resident in Australia since 2008.  The Tribunal does not accept, in this applicant’s case, that he has such an inherent connection to his tribe or his tribal village, such that to expect him not to live there would amount to an unreasonable adjustment.

    Therefore, notwithstanding the finding that the applicant has a well-founded fear of persecution in NWA, in all the circumstances, the Tribunal is of the view that the applicant can live in Lahore, that there is no appreciable risk of persecution for him there, and it would be reasonable for him to relocate there.”

Consideration

1. I have already set out several observations in passing.  It should be noted that the Tribunal’s finding that the applicant presented as a resilient young man was one well and truly open in the light of the material before it.  The applicant had obtained a variety of employment in Australia.  It should be noted that the Tribunal was conscious of the fact that unemployment was higher in Pakistan than in Australia.

2. The Tribunal noted the applicant’s objections to relocation, which are very much as set out in both his oral submissions before the Court and his written contentions of fact and law.  The Tribunal simply did not accept them.

3. I accept the submission of the first respondent that the finding by the Tribunal that the applicant did not face a real chance of Convention-related persecution in the reasonably foreseeable future was open to the Tribunal to make on the evidence before it.

4. The Tribunal also correctly applied its mind to whether it was reasonable, in the sense of practical in the circumstances, for the applicant to relocate to Lahore.  The Tribunal did consider the applicant’s personal circumstances.

5. I accept the submission of the first respondent (see paragraphs 22 to 23, first respondent’s submissions) that the Tribunal properly considered the applicant’s claims but rejected them.

6. It is also the case, as the first respondent submits, that the Tribunal did not find that the applicant would have to live in a slum in Lahore. 

7. In summary, I accept the first respondent’s submission that when analysed properly the applicant’s claims are essentially a matter of merits review.  The applicant understandably did not like the Tribunal’s conclusions about the relocation issue, but that does not mean that the Tribunal fell into jurisdictional error.

Conclusion

1. For these reasons, the application must be dismissed with costs.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date: 16 May 2013