MZZAU v Minister for Immigration

[2013] FCCA 1773

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZAU v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1773

Catchwords:
MIGRATION – Review of Refugee Review Tribunal – no matter of principle – application dismissed.

Legislation:  
Migration Act 1958 (Cth).

Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145; (2010) 190 FCR 248; (2010) 274 ALR 438; (2010) 119 ALD 26
S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; 216 CLR 473; 203 ALR 112; 78 ALJR 180

Applicant: MZZAU

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1188 of 2012

Judgment of: Judge Riethmuller

Hearing date: 15 April 2013

Date of Last Submission: 15 April 2013

Delivered at: Melbourne

Delivered on: 29 November 2013

REPRESENTATION

Counsel for the Applicant: Mr Watters of Counsel

Solicitors for the Applicant: Victoria Legal Aid

Counsel for the Respondents: Mr Brown

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. The Application filed 24 September 2012 and the Amended Application filed 21 December 2012 be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $6,646.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 1188 of 2012

MZZAU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Pakistan who arrived by boat at Christmas Island on 7 January 2012.  He applied to the Department of Immigration and Citizenship for a protection visa on 8 April 2012, which was ultimately refused by a delegate of the Minister

   
   

   on 21 May 2012.

2. The applicant then sought review of the delegate’s decision in the Refugee Review Tribunal, by application dated 25 May 2012. 

   
   

   The Tribunal dismissed the application and affirmed the decision of the delegate, handing down its decision on 26 August 2012.

3. The applicant filed an application for judicial review of the Refugee Review Tribunal on 24 September 2012.

4. The substance of the applicant’s case as ultimately put to the Tribunal  is summarised at para.40 as:

   40. On 16 July 2012, the applicant’s representative provided a submission confirming that the applicant fears persecution throughout Pakistan for reason of his Shia faith and his membership of the Bangash Shia community in Karachi.  The representative submitted that the applicant fears he will be seriously physically abused, killed or subjected to an extraordinary level of discrimination that will threaten his ability to subsist.  In response to the delegate’s finding, the representative said that:

   ·   There have been repercussions from the threats his father has received with him being forced to remove his children from school, have his phone disconnected and stop attending the local Shia Mosque on a daily basis in the last year.

   ·   The applicant’s Parachinar dialect is highly distinctive and he would be recognised throughout Pakistan as a Shia Muslim from that area.

   ·   It is relevant to the applicant’s subjective fear that his aunt’s husband and son who were members of the Bangash clan were killed, despite the motive for the attack not being able to be proven.

   ·   Independent country information confirms that the Taliban’s use of threatening phone calls and letters is widespread, and that the Pakistani authorities are unable or unwilling to stop the Taliban carrying out threats against prominent members of the Shia population.

   ·   It was essential for the applicant to continue his occupation as a taxi driver to support his wife and four children despite his fear of harm.

   ·   Independent information indicates that Shias in Karachi are systematically discriminated against by the Taliban.

   ·   The widespread violence in Pakistan is discriminatory with the applicant fearing the Taliban who specifically the Shia population.  He also fears he will be targeted as he is the son of the leader of the Bangash Shia community.

5. The Tribunal did not accept that the applicant was a witness of truth, saying:

   75. As the Tribunal put to the applicant in the course of the hearings, it has difficulty in accepting that he is telling the truth about the problems he claims he and his family had in Pakistan.

   76. In the interview with the Department n 14 April 2012, the applicant did not claim that three people from the Bangash Shia community in Karachi called Basharat Hussein, Tahir Hussein and Shahsawar Hussein were killed in 2011, and that following this incident his father decided that the applicant should leave Pakistan.  He did not make this claim in the statement submitted with his protection visa application.  Instead, he claimed he left Pakistan due to the threats his father received.  Not making such a significant claim either during the interview with the Department or in his statement submitted with the protection visa application leads the Tribunal to doubt that the applicant has been truthful in his evidence about his circumstances in Pakistan, and in particular, his claims that his father and family were targeted because his father is the head of the Bangash Shia community in Karachi or that he left Pakistan because of these threats or because three people from the Bangash community in Karachi were killed.

   77. At the interview on 14 April 2012, the applicant first claimed that the previous leader of the Bangash Shia community in Karachi and his son, who he claimed in the statement submitted with his protection visa application were killed by Sunni extremists in 1998, were his aunt's husband and son. Not making such a significant claim in the statement submitted with his protection visa application leads the Tribunal to doubt that the applicant has been truthful in his evidence about his circumstances in Pakistan, his reasons for leaving and his claimed fear of harm if he were to return, in particular that the previous leader of the Bangash Shia community in Karachi and his son were related to the applicant and his family as claimed, that his father is a leader of the Bangash Shia community in Karachi or that his father and his family were threatened because of his father's position.

   78. The applicant’s evidence about his claimed circumstances in Pakistan has been inconsistent, including:

   ·   In the interview with the Department on 14 April 2012, the applicant claimed that his father received three or four letters in the last three or four years with the last one being received around June or July 2011. This is inconsistent with the applicant's evidence at hearing where he told the Tribunal that his father received 10 or 11 letters between 2007 and 2011.

   ·   In the interview with the Department on 14 April 2012, the applicant said that he sometimes attended the Mosque to worship and at other times worshipped from home. This is inconsistent with the claims in the applicant's statement submitted with his protection visa application that he hasn't been able to attend the Mosque for the last year due to threats his father received that were directed at the family. It is inconsistent with the applicant's evidence at hearing that he attended the Mosque with his father before he left Pakistan, although they would travel to and from it a different way to avoid harm. The Tribunal noted that when it put this inconsistency to the applicant, he said that previously they were able to attend the whole period of 10 days of Muharram but in the last year they were only able to attend once or twice and when specifically asked whether he attended the Mosque in the year before coming to Australia, the applicant said he did but not as in previous years.

   ·   In the interview with the Department on 14 April 2012, when asked whether he experienced any incidents during the time he was driving a taxi, the applicant said that he mostly helped his father in the shop and the taxi was used as a private vehicle. This is inconsistent with the information provided in his protection visa application where he detailed that he had been self-employed as a taxi driver from January 2006 to October 2011 earning 300 to 400 rupees daily and that from January 1984 to January 2006, he was employed in his father's retail shop in Set Karachi, Metro Wel, Pakistan.

   …

   80. Whilst the Tribunal accepts that the applicant wants to improve things for his children, it is not satisfied he has explained the inconsistencies or omissions in his evidence. These inconsistencies and omissions are significant and are adverse to his claims. The Tribunal is also of the view that the facts of the applicant and his family having lived in the same address in Karachi since January 1971, continuing to run a family clothing shop, and having worked as a taxi driver from January 2006 to October 2011, are adverse to the applicant's claims of having been targeted in Pakistan. The Tribunal does not accept that the applicant has been truthful in his evidence about his circumstances in Pakistan, his reasons for leaving and his claimed fear of harm if he were to return.

   81. Having formed a view as to the applicant's credibility, the Tribunal does not accept that the applicant and his family were having the problems he claims they had in Karachi. The Tribunal does not accept that his family are related to the previous leader of the Bangash Shia community in Karachi and his son who according the applicant were killed or that his father is a leader of the Bangash Shia community in Karachi or that his father and his family were threatened because of his father's position. The Tribunal does not accept that the applicant's father and his family were threatened by Sipah-e-Sahaba, Lashkar-e-Jhangvi, the Taliban or Sunni extremists because of his father’s position or for reasons of ethnicity or religion as claimed or for any other reason. The Tribunal does not accept that the applicant's children have ceased to attend school because of the threats or because they are Shi as. The Tribunal does not accept that the applicant and his family have been restricted in their practice of their religion. The Tribunal does not accept that the applicant left Pakistan because of the threats to his father and family or that following the killing of three people from the Bangash Shia community in Karachi, his father decided the applicant should leave Pakistan.

6. The key findings of the Tribunal were as follows:

   82. The Tribunal accepts that sectarian violence is a problem in Pakistan.  However, as put to the applicant at hearing, when the Tribunal considers that there are estimated to be over 40 million Shia Muslims in Pakistan, it is of the view that there is only a very remote chance that the applicant will be the victim of an incident of sectarian violence if he returns to Pakistan. The Tribunal does not accept that there is a real chance that the applicant will be persecuted in the context of the sectarian violence in Pakistan if he returns to that country now or in the reasonably foreseeable future. The Tribunal does not accept that there is a real chance that the applicant will be seriously physically abused, killed or subjected to an extraordinary level of discrimination that will  threaten his ability to subsist, for reason of his Shia faith or his membership of the Bangash Shia community in Karachi. The Tribunal does not accept that there is a real chance the applicant will be unable to worship freely without being targeted by Sipah-e-Sahaba, Lashkar-e-Jhangvi, the Taliban, Sunni extremists or people associated with them. The Tribunal does not accept that there is a real chance that the applicant will be discriminated against for reasons of his religion in such a way or to such an extent as to amount to persecution if he returns to Pakistan now or in the reasonably foreseeable future.

   83. Having considered the applicant's claims singularly and cumulatively, the Tribunal does not accept on the evidence before it that the applicant has a well-founded fear of being persecuted for one or more of the five Convention reasons if he returns to Pakistan now or in the reasonably foreseeable future. Therefore he does not satisfy the requirements of s.36(2)(a) of the Act.

   …

   85. The applicant claims that if he were to return to Karachi, he would face significant risks of harm based on his Shia faith and because of the political situation and ethnic rivalries which constitute that city.  He claims he would face these significant risks of harm because he and his family have been significantly harmed in the past and he will continue to be perceived as a Shia Muslim.

   86.  However, the Tribunal does not accept has been truthful in his evidence about his family having been harmed in the past and does not accept that there is a real risk he will be harmed 0r targeted by Sipah-e-Sahaba, Lashkar-e-Jhangvi, the Taliban, Sunni extremists or people associated with them if he were removed from Australia to Pakistan. Although, as stated above, the Tribunal accepts that sectarian violence is a problem in Pakistan as stated above, it is of the view that there is only a very remote chance that the applicant will be the victim of an incident of sectarian violence if he is removed from Australia to Pakistan.

Grounds

1. The applicant sets out the following grounds of review in his Amended Application filed 21 December 2012:

   1. The Tribunal constructively failed to exercise its jurisdiction by not having regard to the integers of the Applicant’s claim.

   Particulars

   a. Properly analysed, the Applicant’s claim to fear persecution had at least six integers (or elements):

   (a) First, the Applicant claimed that he was a Shi’a Muslim.

   (b) Second, the Applicant claimed that he was a member of the Bangash tribe.

   (c) Third, as a necessary implication of the second, the Applicant was of Pashtun ethnicity.

   (d) Fourth, the Applicant was born in Parachinar and spoke the dialect of that area.

   (e) Fifth, the Applicant’s family had received death threats both because they were Shi’ites and because they were prominent/politically active members or leaders of the Bangash trive in Karachi.

   (f) Sixth, the Applicant was a resident of Karachi.

   b. Each of these matters was expressly and repeatedly stated by the Applicant and his representative throughout the decision-making processes, both at first instance and before the Tribunal.

   c. The Tribunal assessed the Applicant’s risk of persecution simply on the basis that he was a Shi’a Muslim in Pakistan.

   d. Accordingly, the Tribunal failed to have regard to relevant considerations, namely the integers of the Applicant’s claim, and constructively failed to exercise its jurisdiction.

   2. Alternatively, the Tribunal constructively failed to exercise its jurisdiction by misunderstanding the Applicant’s claim and failing to consider the claim actually put.

   Particulars

   (a) The Applicant claimed to fear persecution as a Shi’a Muslim who was a member of the Bangash tribe, who was readily identifiable as such due to his ethnicity and dialect and who resided in Karachi.

   (b) The Tribunal considered the Applicant’s claim simply on the basis that he was a Shi’a Muslim living in Pakistan as a whole.

   (c) By doing so, the Tribunal failed to consider the claim actually put by the Applicant.

   3. The Tribunal misapplied the law in considering the Applicant’s claim.

   Particulars

   (a) The Tribunal was required to consider the risk faced by the Applicant in returning to Pakistan.

   (b) Instead, it assessed the risk facing a generic Shi’a Muslim in Pakistan and, on that basis, reasoned that the Applicant did not face a real risk of persecution.

   (c) By doing so, the Tribunal committed a jurisdictional error of the kind identified in S395/2002 v Minister for Immigration and Multicultural Affairs.

Ground 1

1. The Applicant submits that the Tribunal did not ‘consider’ the basis of his claim to fear persecution as it was required to, in accordance with the reasons in Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145; (2010) 190 FCR 248; (2010) 274 ALR 438; (2010) 119 ALD 26 (see para.9 submissions of Applicant filed 21 December 2012).

2. The Applicant argues that the decision of the Tribunal clearly indicates that they did not make a finding with respect to the Applicant’s ethnicity, dialect and place of residence, saying (para.9 submissions of Applicant filed 21 December 2012):

   9(c) Nothing in the Tribunal’s reasons suggests that it engaged in the necessary intellectual process:

   i. At no point in the section of the Tribunal decision ‘Findings and Reasons’ does the Tribunal refer to the issues of ethnicity or dialect.

   ii. Whilst the Tribunal does refer to Karachi at various points, it does not at any point discuss or comment upon the security situation in Karachi or how it might be different to or the same as the security situation anywhere else in Pakistan.

3. In their responding submissions filed 6 March 2013 at para 29, the Minister argues that the integers that the Applicant refers to were not put to the Tribunal, saying:

   29. The applicant did not put any claim of a well-founded fear of persecution in relation to being a Pashtun in Karachi to the Tribunal.  There was no substantial, clearly articulated argument, based on established facts (Drachichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26), about persecutory treatment of Pashtun in Karachi, rather passing and unsubstantiated references, recorded in the delegate decision record:

   29.1 to the applicant’s then representative saying that it would be difficult to relocate (away from Karachi) “when he is targeted as a Pashtun or a Shi’a” (CB p 118.5), and

   29.2 to the applicant saying that in Jarachi his children were being “targeted because they are Pashtuns and because they are Shi’as” (CB p 121).

4. However, the Minister also poses an alternative argument at paras.30-31, saying:

   30. His claim of a well founded fear of persecution in relation to his membership of the Bangash Shi’a community in Karachi, characterised by Pashtun ethnicity and family origins in northern Pakistan, with resultant appearance and dialect, arises because of their adherence to the Shi’a Muslim faith, and the potential for being subjected to persecutory violence by extremist Sunni sects and the Taliban.

   31. The characteristics of the members of the Bangash Shi’a community in Karachi were necessarily incorporated within the concept of the Bangash Shi’a community in Karachi, when the Tribunal gave consideration to the applicant’s claim that he had a well founded fear of persecution in relation to his membership of that community.  The Tribunal’s findings in relation to the applicant’s fear of persecution arising from membership of the Bangash Shi’a community in Karachi were at a higher level of generality which subsumed that community’s characteristics (Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 at [91]).

5. It appears that the Minister submits in the alternative that, because the Tribunal did not accept that the Applicant was at risk because of his Shi’a faith or his membership of the Bangash Shi’a community in Karachi, the Tribunal also meant for these findings to encompass the Applicant’s less precise claims with respect to his dialect and/or ethnicity.

6. The Minister did not make a written submission with respect to the whether the Tribunal considered the place of residence of the Applicant.

7. At paras.82-83 of their decision, the Tribunal made the following findings (CB.27):

   82.    …  The Tribunal does not accept that there is a real chance that the applicant will be seriously physically abused, killed or subjected to an extraordinary level of discrimination that will threaten his ability to subsist, for reason for his Shia faith or his membership of the Bangash Shia community in Karachi. …

   83.  Having considered the applicant’s claims singularly and cumulatively, the Tribunal does not accept on the evidence before it that the applicant has a well-founded fear of being persecuted for one or more of the five Convention reasons if he returns to Pakistan now or in the reasonably foreseeable future.  Therefore, he does not satisfy the requirements of s.36(2)(a) of the Act.

1. The Tribunal also considered the applicant’s claims that:

   85.        …were he to return to Karachi, he would face significant risks of harm based on his Shia faith and because of the political situation and ethnic rivalries which constitute that city.  He claims he would face these significant risks of harm because he and his family have been significantly harmed in the past and he will continue to be perceived as a Shia Muslim.

   86.        However, the Tribunal does not accept [the applicant] has been truthful in his evidence about his family having been harmed in the past and does not accept that there is a real risk he will be harmed or targeted by Sipah-e-Sahaba, Lashkar-e-Jhangvi, the Taliban, Sunni extremists or people associated with them if he were removed from Australia to Pakistan.  Although, as stated above, the Tribunal accepts that sectarian violence is a problem in Pakistan as stated above, it is of the view that there is only a very remote chance that the applicant will be the victim of an incident of sectarian violence if he is removed from Australia to Pakistan.

2. The Tribunal was alert to the issues about the Applicant’s obvious ethnicity, when recounting that this issue was before the delegate, saying:

   33. When asked by the primary decision-maker about the possibility of relocating in Pakistan, the applicant said that he could not live safely anywhere in Pakistan.  He said that he was easily recognised as a Shia because he came from the tribal area in Parachinar and had the dialect of that area.  He said that his appearance and name would also alert the Taliban and other Sunni extremists that he was Shia Muslim.  He said that in Karachi his family was targeted because they are Pashtuns and because they are Shia.  He further said that his father’s leadership position has given his family some prominence and made him a target for the Taliban and other Sunni extremists.

   34. When asked by the primary decision-maker whether he had experienced any incidents during the time he was driving a taxi, the applicant at first stated that the taxi was used a private vehicle and he mostly helped his father in the shop.  However, when the delegate put to him that this application indicated he owned a taxi and was driving in Set Karachi, Metro Wei and earning 300-400 rupees daily, he said he was not driving on a full-time basis.  He said that he would drive for two or three hours to earn some extra money at night.  When asked whether he had any problems when people recognised his dialect and where he was from, the applicant did not provide a direct response.  Instead, he said that he would tell his passengers that he was from Karachi.  He said that as a taxi driver he could easily refuse to take the fares.

3. It appears to me that on a fair reading of the decision the Tribunal were proceeding on the basis that the Tribunal accepted the proposition that his ethnicity was apparent to those who saw or spoke to the Applicant.

4. As a result, I am not satisfied that the Tribunal failed to deal with the Applicant’s claim as put by him.

Ground 2

1. In the alternative, the Applicant submits that the Tribunal’s misunderstanding of his claim led to a failure of the Tribunal to consider his claim.

2. In his written submissions (paras.13-14 submissions of Applicant filed 21 December 2012), the Applicant says:

   13. In the present case, and as set out above, the Applicant claimed to be at particular risk of persecution by virtue of his ethnicity and dialect, which marked him out as being a Shi’a Muslim of Bangash ethnicity hailing from Parachinar.

   14. By simply considering the risk faced by Shi’a Muslims of any ethnicity in Pakistan as a whole, the Tribunal failed to consider the claim that was actually being made by the Applicant.  Accordingly, the Tribunal constructively failed to exercise its jurisdiction.

3. In responding submissions at paras.34-37, the Minister says that:

   a)The Tribunal considered the Applicant’s claim that he was a member of the Bangash Shi’a community in Karachi;

   b)The membership of the Bangash Shi’a community in Karachi includes the dialect and appearance of a person whose family originated in Parachinar;

   c)There was a remote chance of the Applicant falling victim to the sectarian violence in Pakistan ‘in light of the number of Shi’a Muslims in Pakistan’; and

   d)The Tribunal rejected the proposition that the applicant was at risk due to his Shi’a faith or membership of the Bangash Shi’a community in Karachi.

4. For the reasons set out above in respect of Ground 1, I am not persuaded that the Tribunal did not consider the Applicant’s evidence.  The Tribunal specifically identified these matters in paragraphs 33 and 34 of their reasons, when discussing the nature of the Applicant’s claims.

Ground 3

1. As a further alternative, the Applicant says that the Tribunal misapplied the law by classifying ‘the Applicant as a generic Shi’a Muslim in Pakistan without any of the distinguishing characteristics which the Applicant claimed to have.’ (see para.18 of Applicant’s submissions filed 21 December 2012). 

2. The Applicant relies on the reasons of Gummow and Hayne JJ in S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; 216 CLR 473; 203 ALR 112; 78 ALJR 180, where their Honours said (at paras.77-78):

   77. …there is a serious risk of inverting the proper order of inquiry by arguing from an a priori classification given to the applicant, or the applicant's claim, to a conclusion about what may happen to the applicant if he or she returns to the country of nationality, without giving proper attention to the accuracy or applicability of the class chosen. That is, there is a real risk of assuming (wrongly) that a particular applicant will be treated in the same way as others of that race, religion, social class or political view are treated in that country. …

   78. The central question in any particular case is whether there is a well-founded fear of persecution. That requires examination of how this applicant may be treated if he or she returns to the country of nationality. Processes of classification may obscure the essentially individual and fact-specific inquiry which must be made.

3. The Minister, in responding submissions at paras.40-41 says that:

   a)the Tribunal gave ‘detailed consideration’ to the Applicant’s ‘specific claims’;

   b)‘the Tribunal’s credibility finding and subsequent rejection of the applicant’s account’ led to the balance of his claims being ‘fairly generic in nature’; and

   c)The Tribunal made findings about those generic claims.

4. The Applicant is correct in stating that the Tribunal, in its decision, did not make a specific finding with respect to his dialect, although it would form part of his apparent ethnicity.

5. Although the Tribunal did refer to both the Applicant’s ethnicity and his place of residence (being a resident of Karachi), the Tribunal does not appear to have made a finding as to how his ethnicity or place of residence would, or would not, impact his claim to be at risk.

6. Counsel for the Applicant argued that:

   … there are really two issues here.  One, we say that the Tribunal failed to, as it were, treat the properties of the applicant as a Bangash Shia – take them into account in considering the claim to fear persecution as a Shia more generally.  So there’s that issue.  And, secondly, there’s this issue of what might be described as the statistical approach to persecution, which the tribunal took in assessing the Shia Muslim claim.

7. Having rejected the Applicant’s evidence as to specific harm in the past, the case was one where the Tribunal had to assess the risk to this Applicant in the particular community.

8. I accept that a simplistic statistical approach would not be appropriate.  However, in this case it appears that the Tribunal was not applying a simple statistic, rather looking at the evidence as a whole, which included:

   a)The size of the Shi’a community;

   b)The Applicant’s features (see para.33 of the Tribunal’s decision);

   c)The lack of previous harm (given the rejection of the Applicant’s evidence);

   d)The Applicant having lived in Karachi since 1971 and worked a taxi-driver between 2006 and 2011.

9. Whilst the issues could have been more clearly addressed, I do not accept that the Tribunal erred in the way claimed by the Applicant.

Conclusion

1. In the circumstances I must therefore dismiss the application.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  29 November 2013