MZZHT v Minister for Immigration

[2014] FCCA 346

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZHT v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 346

Catchwords:
MIGRATION – Refugee Review Tribunal – refusal of a protection visa – no matter of principle – application dismissed.

Legislation:  
Migration Act 1958 (Cth)

Applicant: MZZHT

Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 314 of 2013

Judgment of: Judge Riethmuller

Hearing date: 25 July 2013

Date of Last Submission: 25 July 2013

Delivered at: Melbourne

Delivered on: 28 February 2014

REPRESENTATION

Counsel for the Applicant: In Person

Counsel for the Respondents: Ms Whittemore

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The Application filed on 14 March 2013 be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $5,400.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLG 314 of 2013

MZZHT

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The Applicant seeks judicial review of a decision of the Refugee Review Tribunal made on 15 February 2012.  In that decision, the tribunal affirmed a decision of the delegate of the First Respondent dated 15 March 2012 refusing to grant a protection visa to the Applicant.

2. The Applicant is a citizen of Pakistan who arrived in Australia on 9 January 2009 on a student visa.  He returned to Pakistan shortly thereafter, on 1 April 2009, before coming back to Australia on 2 November 2010.

3. It was only on 18 July 2011 that the Applicant lodged his application for a protection visa based upon claims set out in a statutory declaration which accompanied his protection visa application (see court book, ps.35-37).  The Applicant’s claims were, in substance, on the following bases:

   a)that he feared harm from the MQM due to his association with the ANP political party.  In this regard, he says that on 7 April 2008, he and members of his family were fired upon by members of the MQM, and as a result he was shot in the arm.  He also claimed that he was beaten in May 2010 and that in October 2010 he was again fired upon.  He says that these are the reasons that he decided to flee Pakistan.

   b)that he feared harm on the basis of his Shia religion and his membership of a particular social group, being the persons who were perceived to sympathise with the West, and his claim of perceived support for the Taliban due to his Pashtun ethnicity.  He also claimed to have been harassed by members of the Taliban when visiting his tribal area because he did not have a beard and he wore Western-style clothes.

4. The Applicant attended an interview with the delegate on 14 February 2012.  On 15 March, the delegate made a decision refusing the application as a result of a rejection of the Applicant’s credibility with respect to his evidence about his claims to fear persecution on the basis of his religion and ethnicity and, further, that the delegate did not believe that he had a political profile, actual or imputed, in Pakistan that would place him at risk of serious harm.

5. In the proceedings before the tribunal, the Applicant’s representative provided written submissions on 15 May and at 31 July (including photographs) in support of his application.  A hearing originally scheduled for 8 August 2012 was postponed due to the availability of video facilities and rescheduled for 10 December 2012.  Before the rescheduled hearing the Applicant changed representatives, and his new representative provided further written submissions and a large amount of country information to the tribunal on 4 November and 4 December.

6. On 10 December, the hearing took place, although it was not able to be completed in the time that was allotted.  It was therefore adjourned.  In the period of adjournment, on 8 January and 10 January, further information was provided by the Applicant’s representative, broadening the list of those from whom the Applicant feared harm.  A further hearing then took place on 14 January 2013.

7. The tribunal accepted that the Applicant was a citizen of Pakistan, of Pashtun ethnicity and a Shia Muslim.  Significantly, the tribunal concluded that important aspects of the Applicant’s claims were not credible, saying:

   150. The Tribunal has come to the view that important aspects of what has been submitted in support of the applicant's claims are not credible. These concern the applicant 's claims of involvement with the ANP; his profile as a Shia and the circumstances surrounding the three incidents in which he claims he was, respectively, shot, beaten up and shot at.

   151. The applicant has claimed to have been a member of the ANP and that he joined after he started studying at University which was in 2007 when he would have been around 20. He claims to have been very active in the party, helping with election campaigns, setting up functions, receiving VIPs, going to meetings and spreading the message of the party. The Tribunal notes too that prior to the resumption of the hearing, the applicant submitted a statutory declaration which stated that his role with the ANP also included raising funds for the party, participating in rallies and campaigning, and helping to distribute handbills and posters. The applicant provided a copy of his ANP membership card and the applicant was aware of the ANP's representation in national and state legislatures. The Tribunal has considered carefully the applicant's account of a few people in his area getting together and opening a branch ANP office and that this branch office issued membership cards. There are three matters which have led [to] the Tribunal to the view that the applicant’s evidence about his involvement with the ANP is not credible. First, the Tribunal does not accept the applicant's contention, made in the context of explaining how it was that people could set up an office on their own initiative, that the ANP was not a well-established party in Karachi; it has been active there for a long time. The Tribunal does not accept that the process for establishing an ANP office and being issued with a membership card as described by the applicant is consistent with the significant party that the ANP is. Second, the applicant’s understanding of the ANP's political agenda appeared to the Tribunal to be superficial: he could say little more than it would look after and unite Pashtun people. This is not consistent with what a campaigner and active party person would reasonably know. Third, the applicant's claim that he was designated to be the General Secretary, he also stated later that he had been the Vice President at times, of the branch selected by ANP high command in the area was not at all convincing,: he said that it made no difference to his role if he was General Secretary and that his role was the same and involved helping local people solve their problems. The Tribunal considers that such positions involve particular responsibility and it does not accept that the applicant was General Secretary, or Vice President, of a branch of the ANP. Moreover, it considers that such party roles involve rather different activity than helping people which was how the applicant described his role in his oral evidence.

   152. The applicant stated in his statutory declaration of 10 January 2013 that his father, uncles and cousins were active supporters of the ANP. At the resumed hearing the applicant said that his father supported the ANP and while his father would vote for the party at election time he did not attend rallies. The Tribunal does not consider that what the applicant said his father did constitutes active support and the Tribunal does not accept that his father was an active supporter. On the evidence before it and in light of the Tribunal's assessment of the credibility of the applicant's claims about the nature and extent of his and his father's involvement with the party, the Tribunal also considers it improbable that his uncles and cousins were active with the ANP and the Tribunal does not accept that they were.

8. Whilst the tribunal member accepted that the Applicant had been shot in April 2008, the tribunal went on to find:

   171. The Tribunal has not accepted that the applicant being shot in April 2008 was related to the applicant’s association with the ANP nor to his Pashtun ethnicity or religion, nor being beaten up in May 2010 or in the vicinity of the shooting in October 2008.  It is relevant that the incident in April 2008 was followed by nothing further which the Tribunal has assessed as showing that no-one was looking for him; it is also relevant that despite coming to Australia, the applicant said to flee, in January 2009 he returned to Karachi after just three months.  It is the Tribunal’s assessment that the nature and extent of the applicant’s support for the ANP, which includes attendance at rallies, and the evidence about his experiences in Pakistan shows that the chance that the applicant would face serious harm on this account in the event that he were to return is remote.  In coming to this view, the Tribunal has had in mind independent information which shows that ANP activists have been among those targeted in politically motivated violence in Karachi but the applicant is not and never has been an ANP activist, so markedly diminishing any chance that he could be harmed by MQM activists or others associated with any other party.

9. The tribunal went on to express many concerns about the consistency of the Applicant’s versions of events and the credibility of it.  Ultimately, the tribunal found the Applicant did not face a real chance of persecution for a convention reason and, similarly, that there were not substantial grounds for believing that the Applicant would face a real risk of significant harm for the purpose of the complementary protection provisions.

10. The Applicant raised a large number of grounds for judicial review.  In his written application, the grounds are simply:

    (1)    RRT has failed to take oral evidence from the witness and failed to mention in its decision why it disregarded the witness.

    (2)    RRT did not consider me as Shia Muslim.

11. In an affidavit sworn and filed 31 May 2013, the Applicant lists a large number of additional grounds as dot points across four separate pages.  I will commence with the grounds set out in his application.

Ground 1

1. In this ground, the Applicant alleges that the tribunal failed to take oral evidence from a witness and failed to mention in its decision why it disregarded the witness.

2. The Applicant had requested that the tribunal contact and take evidence from his cousin who he said was present during the April 2008 incident (see court book ps.142 and 445).  It is clear that the tribunal had regard to this request and made arrangements in order to attempt to receive evidence from this witness.

3. The tribunal records in its reasons:

   100. The applicant had asked the Tribunal to take evidence by phone from his cousin who had been shot in April 2008 along with the applicant and an uncle.  At the hearing on 10 December 2012, the Tribunal had been unable to make contact but it was very early in the morning in Karachi at that time.  At the resumed hearing the Tribunal tried to contact the witness but found it could not get through to him; the applicant advised that he was aware that mobile coverage had been blocked in parts of Pakistan because of large protests against what had happened in Quetta in the previous week.  The Tribunal confirmed that this had occurred.

4. The difficulty for the Applicant in this regard is that the tribunal attempted to take evidence from his witness, however, he was not able to make his witness available to give evidence.  Clearly, the witness was not able to be made available in person as the witness was in Pakistan, but it remained incumbent upon the Applicant to make the witness available to the tribunal, at least by telephone.  That did not occur.  There was nothing in the material to indicate that the Applicant had sought to have the tribunal resume at another time when the witness would be available, nor make arrangements for another method to contact the witness.

5. The Applicant, at the hearing before me, disputed whether or not the tribunal attempted to telephone his witness on the second occasion.  This is contrary to the findings of the tribunal, and the tribunal hearing record for the second hearing which appears at p.339 of the court book.  The Applicant has not produced the transcript of the hearing to show that the tribunal member refused to attempt to telephone his witness on the second occasion.  There is no evidence before me that is appropriate upon which to come to a conclusion that the hearing took place other than as recorded in the decision.

6. I am not persuaded that the tribunal have erred in this regard.  Reasonable opportunity was given for the witness to give evidence, however the Applicant could not produce the witness that he sought to call.  Of course, without the witness, the Tribunal could not rely upon the witness’s evidence.

7. In any event, in this case, it seems that the witness’ evidence would have added little, as the tribunal accepted the Applicant’s claim that he was injured in a shooting incident in April 2008 (the subject matter of the evidence from the witness), thus the witness’ evidence does not bear upon an issue that the Applicant has not succeeded upon.

8. In the circumstances, I therefore dismiss the first ground.

Ground 2

1. In ground 2, the Applicant asserts that the tribunal did not consider him as a Shia Muslim.  In effect, the Applicant says that an integer of his claim was not considered by the tribunal.

2. When one turns to the reasons of the tribunal member, it is clear that the tribunal squarely considered the Applicant’s claims with respect to his Shia religious beliefs.  At para.175 of the decision, the tribunal says:

   175. One of the grounds on which the applicant seeks protection is his Shia religious beliefs.  The Tribunal notes that the conversion of the applicant’s father from Sunni to Shia Islam had, on the applicant’s own evidence, no adverse consequences for the applicant’s father and on the evidence before it the Tribunal does not consider that his father’s conversion is material to what might become of the applicant in the event that he were to return to Pakistan.  The Tribunal recognises that the Shia people have been killed or injured in attacks in a number of parts of Pakistan and that the numbers of such sectarian attacks have been increasing.  By far the worst of the violence is in the northern areas of the country and in Quetta but in Karachi there have also been attacks on religious processions and against Shia professionals.  Some 30 per cent of Karachi’s population of more than 11 million people are reported to be Shia and again it is the Tribunal’s view that this demography is relevant to the assessment of whether there is a real chance that the applicant could come to harm as a Shia person.  The Tribunal has found that the applicant and his family are known as Shia in their locality but it has not accepted that the applicant has a particular profile in Shia affairs of the kind he has claimed.  The Tribunal considers that even if the applicant takes over the leadership position of the [BWO] presently held by his father this will have no significant impact on his profile as a Shia.  The Tribunal does not accept that merely being Shia gives rise to a real chance that the applicant will be persecuted and has concluded that the chance of the applicant being singled out for harm on account of his religion, or him being in a procession or a mosque and the victim of a sectarian attack, is remote.

3. In these circumstances, this ground cannot succeed.

Additional grounds in affidavit

1. The affidavit contains an additional 34 complaints with respect to the decision.  Given the nature of the grounds, it is not surprising that counsel for the Minister sought to deal with them by way of general groupings, submitting that, largely, they take issue at the findings of the tribunal on the basis of merit, claims that the Applicant was not afforded natural justice or procedural fairness, and that the tribunal was biased because it did not accept various parts of the Applicant’s claim.  I have numbered them from (a) to (hh) for reference.

Additional grounds

1. The claim that the tribunal (described in the additional grounds as the “MRT”), in coming to its decision, failed to afford the Applicant natural justice is not apparent on the material.  Indeed, the tribunal held two hearings and received a number of written submissions from the Applicant’s advisor.  To the extent that this relates to the inability of the tribunal to hear evidence from the Applicant’s witness, I have dealt with it above.

2. The claims from (b) to (g) of the affidavit all relate to conduct of the delegate rather than the tribunal member.  The decision of the tribunal member was not bound by any findings of the delegate, even if the Applicant made out these grounds against the delegate, and therefore provides no assistance in the claim against the tribunal.

3. Ground (h) alleges that the tribunal member failed to understand that having a profile in a country is not a pre-requisite to a protection claim.  The tribunal member approached this case on the basis that not all persons with the attributes that the Applicant alleged he had would be the subject of persecution, only those with a significant profile within the community.  This is a question of fact-finding in the individual case.  In some cases, it will only be persons with some degree of profile who will attract adverse attention, whereas, in other cases, any person of a particular attribute will be persecuted.  I find no merit in this ground in the context of this case.

4. In particular (i), the Applicant alleges the member failed to understand the religious nexus of his protection claims.  The religious issues were dealt with in paras.175 to 176.  Nothing that was placed before me suggests that the delegate failed to properly consider the religious issues that had been raised.

5. Ground (j) claims that the findings of the member were unfair.  On the material before the member, it appears to me that the findings were open to him and that this ground seeks merits review.

6. Grounds (k) through (m) allege bias on the part of the tribunal, however this bias claim is based entirely on the rejection by the tribunal member of the case as put by the Applicant.  That a tribunal member might ultimately reject a claim or the facts alleged to support a claim does not show that the tribunal member is biased or should be imputed with apprehended bias or should be considered to have demonstrated conduct that would cause a reasonable person to apprehend bias.  The very purpose of the tribunal member’s role is to make determinations of fact.  These grounds do not show a basis for judicial review.

7. Claims (n) through (r) appear to me to be arguments on the merits of the decision and not judicial review.

8. Ground (s) is a merits review claim with respect to the possibility of the Applicant relocating.  The tribunal clearly dealt with this at para.180 where the tribunal said:

   180. In submissions and in evidence at the hearing, the question of relocation arose.  It was submitted that the applicant would be at risk throughout Pakistan and that relocation would not be reasonable in his circumstances, referring to continuing human rights problems and political and religious instability.  The Tribunal has concluded that the chance is remote that the applicant would face serious harm upon return to Karachi on account of his race (ethnicity); religion; his membership of particular social groups as proposed (Shia western-educated man; people holding anti-Taliban views; and western sympathisers) or his political opinion.  It is therefore not necessary for the Tribunal to consider further and make findings on the question of relocation.

1. In the circumstances, I find no basis for this ground.

2. Ground (t) again repeats the claims with respect to hearing evidence from the Applicant’s witness, which has been dealt with above.

3. Ground (u) alleges that the tribunal erred by not substantiating its findings at para.150 (set out above).  Paragraphs 151 and 152 appear to me to clearly support the findings at para.150, and therefore the Applicant cannot succeed on this ground.

4. Particular (v) alleges bias as a result of the findings made in paragraphs 151 and 152.  For the reasons set out above, a mere finding by the tribunal as to the relevant facts, as the conduct of the tribunal was obliged to carry, was the purpose of the tribunal hearing and cannot of itself demonstrate bias.  Nothing in the material indicates that the tribunal exhibited actual bias.

5. It is complained at particular (w) that the mere discussion by the tribunal member of the Applicant’s history of involvement with religions (both Christianity and Muslim) “raises the suspicion that the member was biased”.  I reject this claim.  It was clearly relevant to the determinations that the tribunal had time to take, to consider the nature and extent of the Applicant’s faith and religious practices in the context of his community.  This does not demonstrate bias or a suspicion of bias on the matter of the member.

6. The Applicant alleges at particular (x) that paragraph 155 demonstrates that the tribunal was biased, illogical or had prejudged the case.  The paragraph provides:  (and set it out).  Again, it appears to me that it is relevant to make a determination as to the extent of the Applicant’s participation in and commitment to a religious practice in determining whether or not the Applicant’s religious beliefs are likely to result in him suffering harm.  I reject this claim of the Applicant.

7. Paragraph (y) complains about the fact-finding of the tribunal with respect to a welfare organisation and does not identify an error of law.

8. Particular (z) complains about the contents of paragraph 161 which provides:  (and set it out).  The Applicant’s argument appears to proceed erroneously on the basis that a tribunal is required to accept his version of events unless there were “substantive evidence to counter” the Applicant’s version.  This is simply wrong in law.  It is for the tribunal to determine what claims and evidence they accept or reject.  It was certainly open to the tribunal to make the findings that it did.  I therefore find that this ground is not made out.

9. Particular (aa) attacks the findings of para.163 which are in the following terms: 

   163. The Tribunal accepts that the applicant was injured, along with his cousin and uncle, by gunshot in April 2008 but, having regard to there being no further attempt to harm him, does not accept that the weight of evidence indicates that what happened was perpetrated for reasons associated with his, or his cousin’s or uncle’s, affiliation with the ANP or their Shia religion, or their Pashtun ethnicity.

10. The Applicant alleges the tribunal dismissed the factual basis of the incident, although clearly the tribunal accepted that the Applicant was injured by a gunshot wound in its findings.  The tribunal seeks to review the finding in fact based upon the inferences to be drawn from the evidence that the Applicant was only shot at once.  The inferences of the tribunal were open to it and do not show an error of law on its part.

11. Particular (bb) continues the same argument with respect to the same issues, referring simply to a different part of the reasoning of the tribunal.  For the same reasons, this particular does not show an error of law.

12. Particular (cc) is a claim that there was no factual foundation for the tribunal’s finding that “there is a great deal of talk against the Taliban” in Pakistan as contained at para.172.  Paragraph 172 says:

    172. The applicant has claimed that his opposition to the Taliban is one factor which places him at risk of harm from Taliban sympathisers or operatives.  It is noted here that the applicant’s contact with Taliban people when he was visiting Peshawar before coming to Australia involved some harassment about his lack of a beard, his dress and his prayer.  The Tribunal notes that this harassment had no subsequent consequences for the applicant and the Tribunal considers that harassment to be not material to what might happen to the applicant upon his return to Pakistan.  The applicant claims that his very involvement in the ANP, which condemns the Taliban, and his religion are evidence of his anti-Taliban opinion, and the Tribunal accepts that if the applicant was observed at rallies then it could be assumed that he was against the Taliban.  The Tribunal accepts that the applicant is opposed to the Taliban’s ideology and activities.  The Tribunal is mindful that Karachi is very diverse but that there are some districts which appear to have welcomed the development of conservative or even extremist Islam.  The applicant is, however, among the very many people in Pakistan who are against the Taliban and its views and activities.  It is true that some such opponents, in particular certain politicians, have been the target of attacks for opposing the Taliban and its ideology and activities.  The Tribunal rejects the applicant’s claim that people do not talk against the Taliban and finds that there is a great deal of talk against the Taliban; the Tribunal further does not accept information submitted by the applicant’s representative that Karachi is part of Pakistan under Taliban control.

13. The factual foundation for this can be found in paras.137 to 142 when the Tribunal discusses the country information.

14. Particular (dd) again returns to the findings of fact that the tribunal make with respect to the Applicant’s religion and that is nothing more than merits review.

15. Paragraph (ee) is simply a merits review complaining that the tribunal member had erred in “not applying the reality of the facts”.  This paragraph does not make allegations that would form a basis for judicial review.

16. Paragraph (ff) complains that the findings of the tribunal member in para.178 are illogical.  The paragraph is as follows:

    178. The Tribunal has considered the applicant’s claims individually as well as cumulatively.  The Tribunal notes that it does not know what proportion of the Pashtun population in Karachi is Shia, or conversely what proportion of the Shia population is Pashtun.  The Tribunal has looked but has not found information about this question, and none has been submitted in the considerable country information submitted by the applicant’s representative.  It does know that there are very large populations of Pashtun people and Shias in Karachi.  In the Tribunal’s view, the chance that the applicant would face persecution on each of the counts raised in the evidence – involving the Convention reasons of race (ethnicity); religion; his membership of particular social groups as proposed (Shia western-educated man; people holding anti-Taliban views; and western sympathisers) or his political opinion – is remote.  Even if the applicant’s circumstances and these factors are looked at cumulatively, the Tribunal does not consider that the chance is otherwise.

    It does not appear to me to be illogical.  The tribunal member has reached the view that he has on the material before him.

17. Paragraph (gg) alleges that the tribunal member has misunderstood and misapplied the principles of complementary protection in this case.  Complementary protection analysis is set out at paras.183 to 191.  This claim is simply unsustainable on the actual reasons of the tribunal, paras.188 to 189, where the tribunal member said:

    188. On the evidence before it and having regard to the Tribunal’s findings of fact about the applicant’s circumstances and his past experiences in his country as well as independent information about conditions in Pakistan, the Tribunal does not consider that there is a real risk that the applicant will be arbitrarily deprived of his life; that the death penalty will be carried out against him or that he will be subjected to torture.  In particular and having regard to the applicant’s evidence that nothing followed and his return to Pakistan in 2009 after just three months in Australia, the Tribunal does not consider that there is a real risk that the applicant would be injured as he claims he was in April 2008 in the reasonably foreseeable future.

    189. Nor, also having regard to the Tribunal’s findings of fact about the applicant’s circumstances, his past experiences in his country and independent information about conditions in Pakistan, including in relation to the overall human rights situation, does the Tribunal consider that there is a real risk that the applicant will suffer cruel or inhuman treatment or punishment; or degrading treatment or punishment.  The Tribunal’s assessment is that there is no real risk that he would do so upon return nor in the reasonably foreseeable future.

18. These reasons follow specific reference to the appropriate section of the legislation, and the explanatory memoranda.

19. Particular (hh) simply alleges that the judgment of the tribunal is biased.  There is no proper foundation for a claim of bias against the tribunal member, so it appears that the Applicant has used the claim of bias as the basis for seeking merits review of the decision.

20. As the Applicant’s case has not demonstrated a ground for judicial review, I must therefore dismiss the application.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  28 February 2014