MZZDZ v Minister for Immigration

[2013] FCCA 2073

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZDZ v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 2073

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

Minister for Immigration and Citizenship v SZRKT [2013] FCA 317

Applicant: MZZDZ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1598 of 2012

Judgment of: Judge Riethmuller

Hearing date: 23 July 2013

Date of Last Submission: 23 July 2013

Delivered at: Melbourne

Delivered on: 10 December 2013

REPRESENTATION

Counsel for the Applicant: Mr Robinson of Counsel

Solicitors for the Applicant: Russell Kennedy Solicitors

Counsel for the Respondent: Mr Knowles of Counsel

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The name of the First Respondent be amended to “Minister for Immigration and Border Protection”.

2. The Application filed 13 December 2012 and the Amended Application filed 21 June 2013 be dismissed.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 1598 of 2012

MZZDZ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Pakistan.  On 7 March 2011, he applied for a student visa, which was granted on 12 April of that year.  He arrived in Australia on 29 April, holding a visa that did not expire until 7 June 2012.  On 28 September 2011, he left Australia to return to Pakistan.  He then came back to Australia on 25 October 2011.  On 30 November 2011, the applicant made an application for a protection visa.

2. The substance of the applicant’s claims for a protection visa, are that he is a Christian from Karachi, whose family has been the victims of persecution.  He said that his father worked for a private charity organisation and was murdered on 25 September 2002, along with six other Christians.  He said the police treated the family poorly and that he feared that Muslims, generally, as well as the perpetrators of the crime and/or the police, would persecute him.  Whilst the applicant says that the police were unhelpful, no specific incidences of persecution or serious harm were alleged by him until September 2010, when he said he was taken by police officers at 5.00 in the morning, when they were on patrol. 

3. The applicant says that he was beaten as a result of the police finding out that he was a Christian.  He said that after this he left Pakistan, but then later returned when his mother fell ill.  He was told that his friends had been arrested on false allegations of drug trafficking, and was advised that it would be dangerous for him to remain in Pakistan.  He said he heard that the police were investigating him and that one of his friends had confessed to the police that he was involved in selling drugs, as a result of which he is fearful of returning to Pakistan.

4. Importantly, for the purpose of this judicial review application, the applicant provided to the delegate a copy of an article published in “Compass Direct”, which discussed the attack in which his father was killed and the subsequent police action.  This information forms part of the court book (CB) and is referred to when the Tribunal refers to the country information in “folios 1-60” at para.[3] of the Tribunal’s decision.  In para.[19], the Tribunal refers to having regard to the delegate’s decision and the material available to it. 

5. The delegate’s decision not only specifically identifies this material as item 13 of the material listed in paragraph 5 of the delegate’s decision, but cross-references it in a citation at the top of page 11 of the delegate’s decision (see CB p.166), as confirmation of the incident in which the applicant’s father was killed.

6. The Tribunal put the applicant’s case and the review application as follows:

   29. The applicant and his family are Christians.  The applicant attended a Christian school until year 10.  He completed years 11 and 12 at a college in Karachi.  After that, in July or August 2010 he commenced work at a call centre.  He ceased working there in September 2010 and worked at a different call centre in February 2011.  His mother works in Pakistan as a schoolteacher; his brother has just finished his school education and his sister attends university in Karachi.

   30. When his father was alive the family attended a Catholic Church in Karachi.  After he was killed, the family, namely, the applicant, his mother, brother and sister, did not attend church and the applicant was unable to study for a period of time.  However, they subsequently resumed church attendance and in about 2005 joined another church group called the Jesus Gospel Assemblies.

   31. In 2010 they began attending a Pentecostal church in Karachi and the applicant’s mother and siblings still attend that church.  The applicant’s religious practice in Pakistan was to attend the weekly church gathering, pray at home every day and once per month go to the home of relatives for prayers.  The applicant also talked about religion with friends.  He has attended church and bible studies classes in Australia.

   32. The applicant’s father worked for a church organisation and in 2002 was murdered.  After his father died the family approached the police for information as to who was responsible but the police were not forthcoming.  On a few occasions the family and others have protested at a location in Karachi about their unhappiness with the police investigation.  On those occasions police officers would come and beat them and other people would chase them away.

   33. The applicant acknowledged a media report about the arrests of certain persons by Pakistan police for the death of his father but he said that it was unknown as to what had happened to these people; the government received pressure from other countries to do something about the incident and he did not believe this was a genuine prosecution.

   34. On occasions; when walking on the street, people who knew the applicant’s father would call the applicant and his family non-believers because his father was suspected of working for “white people” (the Western nations).  When asked what other difficulties he had in Pakistan for being Christian, the applicant then related his account of being detained and beaten by police as set out below.

7. Thereafter, the applicant gave evidence with respect to the police incident (see paras.[35] to [40] of the decision) and evidence about his decision to leave Pakistan (paras.[41] to [51]), as well as evidence about events in Pakistan and Australia and, importantly, returning to Pakistan (see, specifically, paras.[70] to [85]).

8. The Tribunal member also had regard to various items of country information, including a UN High Commissioner for Refugees’ report, a US State Department report and some Christian organisation report.

9. The Tribunal was critical of the applicant’s failure to make inquiries about a protection visa in April 2011, given his version of events.  The Tribunal also found it difficult to accept that he would return to Pakistan, even if his mother was quite ill, if there were real concerns about his safety.  The Tribunal carefully traversed the evidence of the applicant, before finding that his evidence about his decision to leave Pakistan for the second time was not credible (see paras.[107] to [112]).

10. Ultimately, the Tribunal rejected the applicant’s evidence on the basis that he was not a witness of truth, however, the Tribunal did accept a number of the facts set out, saying:

    114. The Tribunal accepts that the applicant and his family are Christians who used to attend a Catholic Church in Pakistan and now attend a Pentecostal Church.

    115. The Tribunal also accepts that the applicant’s father was killed in 2002 as he has alleged.  The Tribunal accepts that this would have been upsetting for the applicant and his family.  The Tribunal is also willing to accept, as he claimed, that the people responsible may not have been brought to justice.

11. With respect to the specific claims of the applicant, the Tribunal said:

    116. However, as the Tribunal has found the applicant is not a witness of truth, the Tribunal finds it has not credible evidence as to the family’s dealings with the police or the public about that.  The Tribunal disbelieves his claims that the family protested about their unhappiness with the police and that the police and others would come and beat them on those occasions.  As he has been found not be a witness of truth, the Tribunal also disbelieves his claims that in public people insulted the applicant and his family about his father as he claimed.

    117. In addition, as he has been found not to be a witness of truth, the Tribunal disbelieves the applicant’s claims that he was arrested, maltreated and detained by the police in Pakistan on the occasions he claimed; that the applicant has friends who have been arrested and investigated for selling drugs; that the applicant has friends who have told the police that he has been selling drugs; that the police have gone anywhere in Pakistan to find him including to the home of his family; that police told the applicant to report to them every week; that the applicant has been told by his family or anyone that the police are looking for him; that the applicant’s mother was ill in 2011; that the family changed their homes in Pakistan in fear of the police; that parents of the applicant’s friends told him that their children were detained by the police, beaten and forced to admit the applicant was involved in selling drugs; that the applicant left Pakistan in April 2011 and again in October 2011 in fear of harm from the police; that the police in Pakistan have any interest in this applicant; that, apart from the death of his father, the applicant and his family have suffered any form of harm for being Christian; that, as claimed in his written statement, that he had to hide from local Moslem radical youths, that the police would not help and that when he talked with Christian colleagues at work they were afraid of being caught be terrorist organisations; that the applicant or his father was suspected by anybody in Pakistan of assisting the United States or engaging in espionage; and that the applicant is genuinely in fear of harm from police or anyone else in Pakistan.

    118. There is no credible evidence before the Tribunal as to why the applicant left Pakistan on two occasions in 2011 and came to Australia.  There is no credible evidence before the Tribunal as to why the applicant does not want to return to Pakistan.

12. After rejecting all of the specific claims by the applicant, the Tribunal went on to consider the more general claim that he may be at risk simply by being a Christian in Pakistan, with the Tribunal concluding:

    122. As stated earlier in this decision, with his protection visa application (and also in the statement that he lodged with that application) the applicant lodged media reports about the treatment of Christians in Pakistan.  That information referred to Christians being attacked; being the victims of blasphemy laws; many Christians living in poverty in Pakistan and suffering discrimination; Christians fearing reprisals after the killing of Osama bin Laden; the presence of extremist groups in Pakistan and elements of society who support their views as well as alleged Pakistan involvement in terrorist attacks in India in 2011.

    123. The Tribunal has carefully considered all of this information but finds that it only reflects the situation for Christians as the Tribunal has assessed that issue as stated above and as discussed with the applicant.

    124. The Tribunal acknowledges the presence of extremist groups and support for them in society or even in the Pakistan government and the fear of reprisals following the killing of Osama bin Laden but the fact remains there is no credible evidence that the applicant or his family (apart from the death of his father) have suffered harm of any kind be it discrimination or any other harm for being Christians in Pakistan.  The Tribunal finds there is not a real chance the applicant will suffer harm for being Christian (or for any other convention reason) in Pakistan.

    125. Overall, the Tribunal finds that there is no credible evidence that if the applicant returns to Pakistan there is a real chance he will suffer persecution for any convention reason.  There is no credible evidence that the applicant has a well founded fear of persecution for any convention reason.

Ground 1

1. The first ground of review relied upon by the applicant, is:

   1. The Tribunal failed to arrive at its decision according to law, by failing to consider the article ‘Suspects from 2002 Karachi Massacre Arrested’ (Compass Direct News, 7 March 2008) and thus:

   (a) ignoring material which might have affected the result of its determinations; and

   (b) reaching a conclusion on the applicant’s credibility without having regard to corroborative material.

2. The article that is specifically referred to in ground 1, is the article that the delegate specifically cross-referenced in the delegate’s decision.  It is also clear that it is the article that is contained within folios 1 to 60, as referred to at para.[23] of the decision.  In addition, a brief excerpt of the evidence before the Tribunal was provided by way of transcript, annexed to an Affidavit filed on behalf of the applicant on 19 July 2013, where the Tribunal member specifically asks the applicant if he is aware that some people had been arrested in relation to the attack (see p.2 of the transcript).

3. In asking this, the Tribunal member refers to two people, yet the article refers to three or four. However, it indicates that the Tribunal member was generally aware of the contents of the article.  Importantly, counsel for the applicant was unable to identify any other material that may have been before the Tribunal, from which this information could have come.  All of this appears to me to weigh against any proposition that the Tribunal member did not have regard to the particular article by Compass.  The fact that the article was not specifically referred to by name, does not – in light of the other evidence – lead me to the conclusion that the Tribunal did not have regard to it.

4. The more significant question is whether or not the Tribunal properly considered the article in determining the issues in the case.  The article, (pages 44 to 45 of the CB), provides an outline of the incident in which the applicant’s father was killed.  It also provides some evidence of apparently abhorrent behaviour by the police afterwards with respect to one of the eyewitnesses, and mishandling of the case.  The article is certainly evidence that the applicant’s father was killed in the incident and that the incident, itself, occurred.  The article does not, however, provide any evidence of any ongoing involvement of the applicant or his family.  In this case the Tribunal appears to have accepted that the incident occurred and that the applicant’s father was killed during the incident (see para 115 of the decision, as cited above).

5. However, the crucial issue for the Tribunal was the extent to which the applicant’s family had been involved in these events, and the impact that these events were having on the applicant and his family.  The article is not evidence that all of the families of the church members were persecuted, nor does it bear upon the applicant’s family directly.  The evidentiary connection between the incident and the applicant’s family, relied upon the evidence of the applicant.  The applicant’s evidence provided little evidence of ongoing harm, at least until the incidents he alleged in 2010 and onwards.

6. These events apparently took place some eight years after the attack that resulted in his father’s death.  The applicant’s evidence with respect to these incidents was wholly rejected, on the basis of credibility.  This is not inconsistent with the terms of the article, nor does it appear to me that the article is of such significance that it would need to be specifically referred to by the Tribunal when assessing the applicant’s credibility with respect to the latter events, or with respect to the applicant’s risk as a result of the events. 

7. On the findings of the Tribunal, although there was an attack at the church and attacks or discrimination thereafter, there was no finding that any of this involved the applicant’s family.  There was not a rejection of the proposition that the incident, itself, occurred.  The Tribunal has made findings on the material before it.

8. In these circumstances, I am not persuaded that the applicant has established the first ground for review.

Ground 2

1. The second ground was expressed as:

   2. The Tribunal asked itself the wrong legal question and/or failed to consider the real question that it had to decide, by failing to consider the risk of persecution arising from the applicant’s individual circumstances as distinct from the risk faced by Christians in Pakistan generally.

2. In this ground, the applicant complains that the Tribunal member considering his claim to be at risk, as a result of being a Christian, failed to consider the applicant’s particular circumstances in assessing the extent of this risk.  The difficulty with this argument is the fact that the Tribunal had comprehensively rejected the applicant’s claims that there was a risk to him as a result of the incident involving his father, and had rejected any claims that he had been at risk as a result of his circumstances. 

3. As a result of these findings, there is nothing on the findings of the Tribunal to indicate that the applicant stands at a greater risk than Christians, generally, in Pakistan.  Having rejected the applicant’s case on his particular circumstances, the Tribunal member, nonetheless, proceeded to consider whether he would have a proper ground for review simply on the basis of his religion, and the risks to Christians generally.

4. The applicant did not succeed on this ground before the Tribunal.  I am not persuaded that the Tribunal member was required to again traverse the specific circumstances of the applicant, with respect to the more general ground, after having rejected the applicant’s claim when considering the applicant’s specific circumstances.

5. In these circumstances, I am not persuaded that the applicant can succeed on this ground.

6. I therefore dismiss the application.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller.

Associate: 

Date:  10 December 2013