MZZIH v Minister for Immigration
[2013] FCCA 1410
•20 September 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZIH v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1410 |
| Catchwords: MIGRATION – Judicial review of Refugee Review Tribunal decision – Protection (Class XA) visa – one day delay in filing of Application – consent of First Respondent to extension of time being granted – time extended to the Applicant – consideration of component integers of claims –relocation – complementary protection criteria – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2), 36(2A), 36(2B)(c) , 477(1) 1951 Convention Relating to the Status of Refugees 1967 Protocol Relating to the Status of Refugees |
| AZABQ v Minister for Immigration and Citizenship[2012] FCA 446 SZMKK v Minister for Immigration and Citizenship [2010] FCA 436 |
| Applicant: | MZZIH |
| First Respondent: | MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 348 of 2013 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 7 August 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 20 September 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms Taylor |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the Respondents: | Mr Smith |
| Solicitors for the Respondents: | Sparke Helmore |
THE COURT ORDERS THAT:
The name of the First Respondent be changed to Minister for Immigration, Multicultural Affairs and Citizenship.
The application for an extension of time pursuant to s.477 of the Migration Act 1958 (Cth) is granted.
The Application filed 20 March 2013 is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $6,646.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 348 of 2013
| MZZIH |
Applicant
And
| MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By Application filed 20 March 2013, and amended on 24 July 2013, the Applicant sought judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 12 February 2013. The Tribunal affirmed a decision of a delegate of the First Respondent dated 25 May 2012 to refuse to grant a Protection (Class XA) visa to the Applicant.
The Tribunal’s Decision Record is dated 12 February 2013 (the Decision Record’). In accordance with s.477(1) of the Migration Act 1958 (Cth) (‘the Act’), the Application for judicial review is incompetent because it was filed more than 35 days after the date of the Tribunal decision. However, the Court can grant an extension of time pursuant to s.477(2) of the Act. The Applicant has filed a written request for an extension of time and provided an explanation for the delay of one day. Given the short period of delay, the First Respondent consented to an extension of time being granted.
The grounds of the Amended Application are as follows:-
‘1. The Second Respondent failed to consider the component integers of the applicant’s claim to fear harm as:
i. a Shi’a muslim of Hazara ethnicity; and
ii. a Shi’a Hazara businessman / shopkeeper.
2. In considering whether or not the applicant could relocate within Pakistan to avoid persecution for a Convention reason, the Second Respondent erred in failing to apply Australian law;
3. In considering whether the applicant faced a “real chance” of persecution (s 36(2)(a)) or significant harm (s36(2)(aa)), the Second Respondent applied the wrong test.
4. The Second Respondent erred in its consideration of Australia’s complementary protection obligations to the applicant in that it failed to consider and apply the criteria in s36(2)(aa) in accordance with law.”
The Applicant’s claims
The Applicant is a citizen of Pakistan, who first arrived in Australia on 25 December 2011 as an irregular maritime arrival. On 8 April 2012, the Applicant received notification of a decision under s.46A(2) of the Act to allow him to lodge a Protection (Class XA) visa application. The Applicant lodged a valid application for a Protection (Class XA) visa on 8 April 2012.
The Applicant claimed protection on the basis of his Shia religion, Hazara ethnicity and imputed political opinion of opposition to extremist groups because of his race and his past involvement as a witness against the Balochis. He claimed that he had witnessed the kidnapping of the owner of a neighbouring business in Quetta by men who had been from the Baloch ethnic group and associated with the Chief Minister of Balochistan. He claimed that he had been required to attend court as a witness and that he had received threatening telephone calls from the Balochi. As a result he had closed his shop and made arrangements to escape from Pakistan. The Applicant initially claimed that the kidnapping events occurred in September 2011, one month before he departed Pakistan in October 2011.
The Applicant said that he was certain to face death if he returned to Pakistan. He said that he would be harmed because he had received the threatening telephone calls as a result of having witnessed the kidnapping. He said that he also feared that he would be targeted by extremists because he was a Shia Muslim and a Hazara. He said that extremist Balochis, the Lashkar-e-Jhangvi and other insurgents wanted to exterminate people like himself. He said that the local police in Pakistan were unable to provide him with protection and that there was no place in Pakistan where he would be safe.
On 7 August 2012, the Applicant’s representative provided Written Submissions to the Tribunal. In those Submissions, the Applicant claimed that the kidnapping event took place in November 2010 and that he received a threatening letter at his shop.
The Tribunal’s findings
The Tribunal had before it the Department of Immigration and Citizenship’s file relating to the Applicant. The Applicant appeared before the Tribunal by video conference on 3 September 2012 to give evidence and present arguments. The Tribunal was assisted by an interpreter in the Hazaragi and English languages. The Applicant was represented by Mr Michael McCrudden of Craddock Murray Neumann Lawyers, a solicitor and registered migration agent. Ms Julia Galetti of the same firm attended the hearing.
The Tribunal made an adverse credibility assessment of the Applicant and did not accept the truth of the Applicant’s claims, in particular, that he had witnessed the kidnapping and that he had received a specific threat in the form of a letter from the Balochi tribe. The Tribunal said:-
“76. In the present case, as … [the Tribunal] put to the Applicant, …[the Tribunal has] difficulty in accepting that he is telling the truth about witnessing the kidnapping of Haji Idris. In the statutory declaration accompanying his original application the applicant claimed that this had occurred in late September 2011, only a month before he claimed he had left Pakistan, on 28 October 2011. At the Departmental interview, after the primary decision-maker put to him that this kidnapping had in fact taken place on 11 November 2010, the applicant conceded that this was correct. He blamed Haji Ismail, the smuggler whom he had paid to take him to Australia and who he said had told him to say that this incident had happened recently. At the hearing before … [the Tribunal], however, the applicant said he had simply made a mistake and he said that the Departmental interview had been his first interview. … [The Tribunal considers] that this inconsistency in the applicant’s evidence casts doubt on whether his evidence is true.
…
80. When …[the Tribunal] asked the applicant why he had not mentioned this threatening letter in the statutory declaration accompanying his original application he said that he had never had an interview in his entire life so maybe this had been why some of the information had been missed out. He said that in his entire life he had that one interview and this was the second interview. He said that he had not been aware what he should say. However, as …[the Tribunal] put to him, …[the Tribunal] was referring to the statutory declaration which he had prepared with the assistance of his representatives before the Departmental interview. The applicant referred in that statutory declaration to having received threatening telephone calls but he did not refer to having received a threatening letter. … [The Tribunal considers] that this suggests that the claim regarding a threatening letter is a recent invention.”
The Tribunal found in paragraph 82 of its Decision Record that the Applicant had “decided to take advantage of this event” (that is the kidnapping) to explain his decision to leave Pakistan. It found further that “in order for his (the Applicant’s) claims to make sense he had to change the time of the kidnapping by almost a year”. The Tribunal did not accept that the Applicant would have remained in Lahore operating his own business for almost one year if he believed he was “in the cross hairs” of the Balochi group and that he could not be safe anywhere in Pakistan.
The Tribunal accepted country information that indicated that Hazaras in Quetta had been the subject of numerous sectarian attacks of which the Lashka-e-Jhangvi had claimed responsibility. Having regard to other country information, the Tribunal found however that the chance of any individual sectarian violence was “very remote” and did not accept that there was a real chance that the Applicant would be killed, injured or otherwise persecuted in the context of sectarian attacks on Shia Muslims, or that he would be prevented from practising his religion, if he returns to Pakistan and settles in Peshawar now or in the reasonably foreseeable future (Decision Record paragraph 86).
The Tribunal also found that it was reasonable, in the sense of practicable, for the Applicant to relocate to some other part of Pakistan. In making its relocation finding, the Tribunal did not accept that there was a real chance that the Applicant would be killed or injured or otherwise persecuted by extremist or insurgent groups, having regard to country information. The Tribunal concluded that it would be reasonable for the Applicant to relocate to Peshawar to avoid the persecution he feared in Quetta.
The Tribunal did not accept that there was a real chance that, for reason of his race or religion, the Applicant would be denied the opportunity to earn a living, denied services, or discriminated against so as to amount to persecution, or that the authorities would fail to protect him.
Ultimately, and even taking into account the cumulative effect of the Applicant’s circumstances as a Hazara and a Shia Muslim, the Tribunal did not accept that there was a real chance that the Applicant would be seriously physically abused, killed, subjected to a level of discrimination which would threaten his capacity to subsist or otherwise persecuted for reasons of his race, religion, real or imputed political opinion or membership of any particular social group. It accordingly did not accept that the Applicant had a well-founded fear of persecution for a 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees (‘Refugee Convention’) reason.
The Tribunal being satisfied that it would be reasonable for the Applicant to relocate to Peshawar where there would not be a real risk that he would suffer significant harm, and having regard to its earlier findings, concluded that it did not accept that there were substantial grounds for believing that as a necessary and foreseeable consequence of the Applicant being removed to Pakistan, there was a real risk that he would suffer significant harm as defined in s.36(2A) of the Act.
Consideration
On a fair-reading of the Tribunal’s reasoning it is clear that the Tribunal was aware that the Applicant was a Shia Muslim of Hazara ethnicity and considered his claims as such (and his claimed fear consequent upon his imputed political opinion) and their component integers. The Applicant’s claim for protection as a Hazara (including as a businessman/ shopkeeper) and on the basis of his Shia religion were considered by the Tribunal. The Tribunal ultimately rejected those claims as put by the Applicant. This was a matter for the Tribunal as the finder of fact. It did not fall into jurisdictional error in reaching its conclusion based properly on the evidence before it. Further, the Tribunal was only required to consider those claims as put by the Applicant or those that arose squarely on the material before it. It did so. No claims were made by the Applicant, nor did it appear on the material before the Tribunal, that Shia Muslims of Hazara ethnicity who are shopkeepers form a particular social group. The Tribunal did in fact consider that the Applicant might fall within a particular social group comprised of Hazara businesspersons who feared persecution and found that the Applicant would not be persecuted for this reason. No error is apparent in respect of this ground as stated in the Applicant’s Amended Application.
The Tribunal correctly applied the relocation test (SZATV v Minister for Immigration and Citizenship (2007) 237 ALR 634; SZKDY v Minister for Immigration and Citizenship[2007] FCA 1667; AZABQ v Minister for Immigration and Citizenship[2012] FCA 446; SZQKE v Minister for Immigration and Citizenship[2012] FCA 514). It considered, first, whether there was available to the Applicant protection from Refugee Convention related persecution in another part of Pakistan. It did so in detail and identified Peshawar as a suitable safe haven, notwithstanding any “linguistic distinctions” asserted by the Applicant in his Written Submissions. The Applicant’s objections to relocation, including the ability of his family to also relocate and his ability to subsist were considered as was required to be done by the Tribunal, however the Tribunal was not satisfied that the Applicant faced a real chance of Refugee Convention related persecution in Peshawar now or in the reasonably foreseeable future. This finding was open to the Tribunal to make on the evidence before it.
In considering relocation, the Tribunal turned its mind to whether it would be reasonable (in the sense of practicable) in the circumstances for the Applicant to relocate to Peshawar. Contrary to the Applicant’s submissions and as submitted by the First Respondent, the Tribunal considered the Applicant’s personal circumstances and the impact that relocating to Peshawar would have on him. The Applicant raised, as objections to relocation, the fact that he would face discrimination in employment and education and the deteriorating security situation in Peshawar and that the Applicant has numerous dependents and it would be unreasonable to expect the entire family to move. Within the framework of those objections, the Tribunal considered the matter. The Tribunal accepted that the Applicant had numerous dependents but ultimately did not accept on the evidence before it that this would make it unreasonable in all the circumstances to relocate to Peshawar. The Tribunal found further the Applicant would be able to subsist in Peshawar. The Tribunal specifically noted country information that indicated that Peshawar had welcomed Hazaras.
The Applicant’s submissions take issue with the merits of the Tribunal’s findings as to whether it would be reasonable for him to relocate within Pakistan. This was a question of fact for the Tribunal who conducted the necessary enquiry and determined that relocation was reasonable. This Court cannot revisit the merits.
Contrary to the Applicant’s assertion and as submitted by the First Respondent, the Tribunal plainly set out in its Decision Record the correct test for determining whether the Applicant’s fear of harm was “well founded” as it is set out in SZMKK v Minister for Immigration and Citizenship [2010] FCA 436 at paragraphs 11 to 12 as follows:-
“[11] In this regard it is worth recalling that s 91R(1) of the Act provides that the Refugees Convention will apply only to persecution for one or more of the reasons mentioned in Art 1A(2) of the Convention, if it satisfies the following requirements of s 91R(1), which are:
(a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b) the persecution involves serious harm to the person; and
(c) the persecution involves systematic and discriminatory conduct.
[12] Article 1A(2) provides that a refugee is a person who:
… owing to a well founded fear of being persecuted for reasons, race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear is unwilling to avail himself of the protection of that country, or who, not having a nationality and being outside the country of his former habitual residence as the result of such events, is unable or, owing to such fear is unwilling to return to it.”
The Tribunal applied this test to the claims made by the Applicant but was not satisfied for reasons that were open to it on the evidence before it that the Applicant faced persecution for the reasons claimed. It was therefore open to the Tribunal to conclude on this basis that the Applicant had not substantiated his claim that he would face persecution for a Refugee Convention reason
The Tribunal accurately set out under the heading “Relevant Law” the correct complementary protection criteria and the Tribunal’s findings and reasons indicate that it understood the relevant application of the particular and different requirements of ss.36(2)(a) and 36(2)(aa) of the Act. The Tribunal’s complementary protection findings put beyond doubt that the Tribunal expressly considered the Applicant’s claims in relation to the complementary protection criterion. Whilst the Tribunal’s specific findings on complementary protection are relatively brief, brevity of itself is not indicative of jurisdictional error (SZRNX v Minister for Immigration & Anor [2012] FMCA 1242 at paragraph 15). The claims made in respect of it were properly considered.
The Applicant’s Written Submissions suggested that significant harm would include acts of violence by insurgents and extremists “whether or not they were specifically targeting the applicant” and that a failure by authorities to protect the Applicant from significant harm constitutes arbitrary deprivation of life. On the hearing of the matter however the Applicant conceded that s.36(2B)(c) of the Act excludes harm that is faced by the general population as being the basis for a complementary protection claim. This ground was thus not pressed to the extent as set out in the Applicant’s Submissions but it was put that in failing to consider component integers of the Applicant’s claim as suggested by the Applicant, the Tribunal failed to recognise that the risk faced to the Applicant was significantly higher than that faced by the general population. This Court is satisfied however that the Tribunal did not fall into jurisdictional error as submitted by the Applicant in respect of ground one of its application.
The application is dismissed and a costs order shall follow.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Associate:
Date: 20 September 2013
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