MZZKF v Minister for Immigration
[2013] FCCA 1877
•21 October 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZKF v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1877 |
| Catchwords: MIGRATION – Principles to be applied to application for an adjournment – grounds essentially challenge merits of Tribunal’s decision – Tribunal not required to accept uncritically the allegations of the Applicant – application of s.36(2B)(c) of the Migration Act1958 (Cth) – Applicant failed to establish jurisdictional error by Tribunal – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(aa), 36(2B)(c) |
| Du v Minister for Immigration and Anor [2011] FMCA 753 Minister for Immigration and Ethnic Affairs v GuoWei Rong (1997) 191 CLR 559 Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC10 NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559 NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 124 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 SZRSN v Minister for Immigration and Citizenship [2013] FCA 751 WAJS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 139 |
| Applicant: | MZZKF |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 592 of 2013 |
| Judgment of: | Judge Whelan |
| Hearing date: | 21 October 2013 |
| Date of Last Submission: | 21 October 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 21 October 2013 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the Respondents: | Mr Wood |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The name of the First Respondent be amended to ‘Minister for Immigration and Border Protection’.
The Application by the Applicant for an adjournment of proceedings be dismissed.
The Application filed by the Applicant on 1 May 2013 be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $6,646.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 592 of 2013
| MZZKF |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
The Adjournment Application
While there is no formal application before the Court for an adjournment and there is no evidence on affidavit in support of such an application, I am prepared to consider the oral submissions made by the Applicant and also the letter provided by his treating psychologist Ms WAL TUBBESING (“Ms Tubbesing”). The Applicant, essentially, seeks an adjournment of these proceedings for an indefinite period and in support of that application, he produces a letter from Ms Tubbesing.[1]
[1] Letter from Coburg Family Medical Centre dated 7 October 2013, signed by Ms Tubbesing.
The application in this matter was lodged on 1 May 2013 this year. The letter of Ms Tubbesing is dated 7 October 2013, but was not received by the Court until 16 October 2013, and states that Ms Tubbesing has been treating the Applicant since 17 June 2013. The letter says the Applicant is being treated for “anxiety and depression”.[2]
[2] Letter from Coburg Family Medical Centre dated 7 October 2013, signed by Mrs Tubbesing.
In relation to the Applicant’s capacity to participate in these proceedings, Ms Tubbesing states the following:
Due to his current mental state he was not able to organise himself for the hearing and it would be of benefit to him if the hearing could adjourned. This lack of organisation is due to his depressed and anxious state of mind . . . [3]
The letter goes on explain that Ms Tubbesing is using cognitive behavioural therapy to assist the Applicant but provides no prognosis in relation to his condition.
[3] Ibid.
The hearing today was set down on 3 July 2013. The Applicant has therefore had in excess of three months to provide the Court with an appropriate application for an adjournment and the type of supporting material which would enable the Court to find that he is incapable of participating in these proceedings.[4] I am not satisfied that the material the Applicant has provided to the Court, to date, does so. Further, this material was provided some three working days prior to the hearing despite the Applicant having in excess of three months’ notice of the hearing.
[4] See Du v Minister for Immigration and Anor [2011] FMCA 753 at [24] to [26]; and NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559.
I am also satisfied that, during that period of in excess of three months, the Applicant could have obtained appropriate legal representation. I am therefore not satisfied that this application for adjournment should be granted.
On that basis, I will proceed to hear the application.
The Substantive Application
This is an application for judicial review of a decision of the
Refugee Review Tribunal (“the Tribunal”) made on 11 April 2013 to affirm an earlier decision of the delegate of the Minister not to grant the Applicant a protection visa. The Applicant seeks:
·An order quashing the decision or an order setting it aside;
·A declaration that the decision is invalid; and
·An order remitting the matter for determination according to law.
The Applicant is a Pakistani national who arrived in Australia on 26 March 2011 on a student visa. On 22 September 2011, the Applicant applied for a protection visa. The Applicant claimed to fear harm in Pakistan at the hands of the Taliban due to:
·The Applicant’s, and his father’s, political views;
·The Applicant’s Western education; and
·The Applicant’s love of Western culture.
The Applicant made claims that he and his family had been persecuted in the past by the Taliban, and that both he and his father had been threatened by the Taliban. The Applicant claimed that in 2010 he had been kidnapped by the Taliban, and that he was shot at by the Taliban in March 2011.
The Applicant provided some documentary evidence in support of his claims and at a hearing before the Tribunal on 29 November 2012, the Applicant clarified or changed some aspects of the original claims. The Tribunal was not satisfied that the Applicant satisfied the criteria for a protection visa. The Tribunal accepted that the Applicant’s family received a demand for money from Lashkar-e-Islam (“L-e-I”) in 2005, but was not satisfied that the Applicant’s father was threatened by that group or by the Taliban in Lahore in 2008. The Tribunal found that
L-e-I had no links to the Taliban.
The Tribunal accepted that the Applicant had attended a local awards ceremony in 2010. However, the Tribunal did not accept that the Applicant had given an ‘anti-Taliban’ speech at that event. The Tribunal accepted that the Applicant may have been approached by a person called ‘Zubair’.
The Tribunal did not accept, however, that ‘Zubair’ was linked to L-e-I or the Taliban, or that the Taliban had sought to recruit the Applicant.
The Tribunal noted that L-e-I was a local militia with no operation in Lahore. The Tribunal considered it implausible that the Taliban would have approached the Applicant to recruit him if the Applicant had been speaking out against the Taliban. The Tribunal did not accept the Applicant’s kidnapping story, describing it as “improbable”.[5] The Tribunal noted that the Taliban typically recruit from within the madrassas, and considered it unlikely that the Taliban would seek to forcibly recruit educated young men who are opposed to their aims and ideals.
[5] Court Book filed 26 August 2013, p.280 at para.76.
The Tribunal did not accept that the Applicant or his family had received threatening communications from the Taliban. Further, the Tribunal did not accept that the Applicant would drive alone at night to collect his visa to travel to Australia if he had been receiving such threatening calls. The Tribunal accepted that the Applicant may have been caught up in an incident involving gunfire on 12 March 2011. However, the Tribunal was not satisfied that the incident involved an attempt by the Taliban to harm or threaten the Applicant.
Accordingly, the Tribunal was not satisfied that the Applicant had been persecuted by the Taliban in the past on the basis of his political beliefs, or that the Applicant faced a real chance of being persecuted in the reasonably foreseeable future on that basis. The Tribunal noted that the Applicant had not made any claims of past persecution on the basis of his love for Western culture. The Tribunal noted that the Applicant had not, in fact, studied in Australia, and held that he did not face a real risk of serious harm in Pakistan simply because he had been in the West or enjoyed Western culture.
The Tribunal did not accept that the Applicant would be at risk of harm in the Punjab because he is identified as Pashtun and therefore “deemed to be a terrorist”.[6] The Tribunal noted that there was a significant Pashtun population in the Punjab, and that Pashtuns were widely represented in public life in the Punjab. The Tribunal noted the Applicant’s family had lived in Lahore for at least seven years and the Applicant had not claimed to have suffered any persecution in the past on the basis of his race.
[6] Ibid, p.282 at para.86.
With respect to the alternative complementary protection criteria, the Tribunal accepted that there was a level of insecurity in Pakistan and that there are risks to members of the community arising from possible terrorist attacks. However, the Tribunal held that the risk was one faced by the population at large, and not one faced by the Applicant personally.
Grounds for Review
In his application for review the Applicant identified four grounds.
·Ground 1:
a. There are substantial grounds for believing that as a foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm. The situation in Lahore is untenable for the applicant and is exacerbated by his past dealings with the Taliban and the tribunal is wrong when it concludes that it falls within an exception to the complementary protection provisions in the Act.[7]
·Ground 2:
b. There is no evidence to suggest that the Taliban did not try to recruit the applicant and there is Country Information to indicate that the Pakistan Taliban resorts to violence and intimidation to show how people are dealt with if they are opposed to their aims and ideals.[8]
·Ground 3:
c. The tribunal has erred by dismissing the shooting incident on 12 March 2011, on the grounds that the allegation was solely based on his statement and that there were no witnesses to the incident. The tribunal did not ask the applicant if the street was busy and if anybody volunteered to act as a witness.[9]
·Ground 4:
d. The tribunal has erred by concluding that the applicant would not be at risk of harm in the Punjab because he was a Pashtun and therefore deemed to be a terrorist. That whilst Pashtuns might well be represented in public life in the Punjab, that does not mean that this applicant will not be persecuted and therefore the tribunal has not properly considered the issue of race, namely that he is a Pashtun and the level of violence associated to Pashtuns.[10]
[7] Application of MZZKF filed 1 May 2013 at p.3.
[8] Ibid.
[9] Ibid.
[10] Application of MZZKF filed 1 May 2013 at pp.3-4.
In oral submissions today, the Applicant raised five issues:
·The Applicant disputed the Tribunal’s finding concerning the link between the Taliban and L-e-I. The Applicant stated that he had proof that the two organisations were linked.
·The Applicant disputed the Tribunal’s finding concerning the person ‘Zubair’, saying that ‘Zubair’ certainly belongs to some militant organisation. The Applicant sought to clarify his evidence concerning the jackets he saw when he was kidnapped.
·The Applicant challenged the Tribunal’s rejection of the claimed telephone conversations between the Applicant’s family and the Taliban.
·The Applicant stated in respect of the incident in March 2011, that he had not told the police that those firing on him were Taliban because he was not in a position to talk at the time. The Applicant knew, however, it was the Taliban. If the Tribunal had asked him more questions about the incident, the Applicant could have given a satisfactory explanation.
·The Applicant also complained about the lawyer who had given him legal assistance with his application. The Applicant stated that he did not accept that the Tribunal’s decision was based on logic.
The First Respondent’s submissions
The First Respondent presented both written[11] and oral submissions. In response to the Applicant’s oral submissions, the First Respondent submitted that, for the most part, these challenged findings of fact by the Tribunal. Such findings can only be challenged in exceptional circumstances. The Court Book shows that there was evidence upon which the Tribunal could make its findings. It was open to the Tribunal to conclude that:
·There was no link between L-e-I and the Taliban;
·‘Zubair’ was not a Taliban operative; and
·The Applicant had not been kidnapped by the Taliban.
[11] First Respondent’s Submissions, filed 10 October 2013.
Ground 1
With respect to the specific grounds for review, the First Respondent submitted with respect to ground 1, that the Applicant seeks a merit review of the Tribunal’s decision. It is not open to the Court to determine whether the Applicant satisfies the alternate criterion for a protection visa, nor whether, as a matter of fact, the situation in Lahore is untenable for the Applicant, or to make any findings as to the existence of the Applicant’s alleged past dealings with the Taliban.
The Applicant also contends that the Tribunal was wrong to conclude that an exception to the complementary protection provisions in the Migration Act 1958 (Cth) (“the Act”) applied. Section 36(2B)(c) of the Act provides that there is taken not to be a real risk that a person will suffer significant harm in a country for the purposes of s.36(2)(aa) of the Act, if the Minister is satisfied that the risk is one faced by the population of the country generally and is not faced by that person personally.[12] The Tribunal identified a risk to the Applicant, being a risk of significant harm occurring as the result of a terrorist attack. The country information on which the Tribunal placed weight did not suggest that the Applicant was exposed to any different or higher risk in relation to a terrorist attack than that of the general population.
[12] SZRSN v Minister for Immigration and Citizenship [2013] FCA 751.
Ground 2
In respect to ground 2, the First Respondent submits that the ground is misconceived. It presupposes that the Tribunal required evidence to suggest that the Taliban did not try to recruit the Applicant:
·First, it was for the Applicant, not the Tribunal, to supply evidence in as much detail as necessary to satisfy the Tribunal that the Applicant met the criteria for a protection visa;[13]
·Second, the Tribunal was not required to uncritically accept any of the allegations made by the Applicant;[14] and
·Third, the Tribunal did not require rebutting evidence in order not to be satisfied about the Applicant’s allegation.[15]
[13] Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155.
[14] Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437.
[15] Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347.
The First Respondent referred the Court to cases in support of these propositions, in particular, WAJS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 139, NAVKv Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 124, and Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214.
In this case, the Tribunal was not satisfied of the Applicant’s allegation that the Taliban had tried to recruit him. The Tribunal considered that claim implausible and the Tribunal had evidence to support its finding that the allegation was implausible.
Ground 3
With respect to ground 3, the First Respondent submits that it is not accurate to say that the Tribunal dismissed the shooting incident on 12 March 2011. The Tribunal accepted that the Applicant may have been caught up in an incident involving gunfire and being shot at. It did not accept that the Applicant had been shot at by the Taliban. The only evidence provided by the Applicant that linked the incident to the Taliban was his claim that he subsequently received a threatening call from an unidentified Taliban caller. This was an allegation the Tribunal did not accept.
Further, if the Applicant contends that, with respect to the Tribunal’s findings concerning the March 2011 incidents, he was denied procedural fairness, it is not apparent on what basis this claim is put. The Court, in the matter of SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] 228 CLR 152, held that a failure to notify an applicant that it might reach a decision by reference to an issue other than those considered by the delegate could amount to a denial of procedural fairness by the Tribunal. In this case, however, the Applicant was on notice from the delegate’s decision that the issue of whether the March 2011 incident occurred, and whether, if it did, the Taliban were involved, were both in issue. Further, the Tribunal is not obliged to disclose the mental processes by which it arrived at its decision.
Ground 4
With respect to ground 4, the First Respondent submits that the Tribunal considered the claim that the Applicant was at risk of harm in the Punjab because he was a Pashtun, but was not satisfied that the Applicant had a well-founded fear of persecution on the ground of his Pashtun race for two independent reasons:
·First, country information to the effect that Pashtuns were widely represented in public life in the Punjab was inconsistent with the claim that they were deemed to be terrorists; and
·Second, the Tribunal noted that the Applicant had lived in the Punjab for seven years and had not claimed to have suffered any persecution on the grounds of his race during that period. The fact that the Applicant had not suffered persecution in the past was relevant, because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future.[16]
[16] Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559.
Conclusions
In NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 (“NAHI”), the Full Court of the
Federal Court held that in the context of a judicial review of a decision by the Tribunal, to engage in fact finding about the merits of the applicant’s case, is not part of the function of the Court. It is necessary for an applicant to show jurisdictional error on the part of the Tribunal.
Much of what the Applicant in this matter has put in the grounds for review is essentially a challenge to the findings of fact made by the Tribunal. The Tribunal did not accept the evidence of the Applicant concerning his encounters with the Taliban. For that reason, and because the evidence was that the Applicant had lived in Lahore without suffering harm, the Tribunal did not accept, as put by the Applicant in ground 1, that the situation in Lahore was untenable for the Applicant.
Further, the Tribunal did not dismiss the Applicant’s evidence that he had been involved in a shooting incident in 2011; rather, it was not satisfied that the shooting had involved an attempt by the Taliban to harm the Applicant. The challenge to those matters involve findings of fact by the Tribunal. The Tribunal is not compelled to accept the claims made by the Applicant, and is entitled to judge those claims on the basis of the evidence before it, including country information and the Tribunal’s assessment of the credibility of the Applicant. This is not a case in which there was ‘no evidence’ to support the Tribunal’s findings.
The Applicant’s claim in relation to ground 2 appears to be misconceived. It is not for the Tribunal to be satisfied that the Taliban did not try to recruit the Applicant, but for the Tribunal to be satisfied that the Taliban did try to recruit him.
While the concept of onus of proof is not appropriate to the
decision-making of the Tribunal, the Tribunal is not required to accept uncritically any or all of the allegations made by the Applicant. In this case, the Tribunal was simply not satisfied that the Taliban had tried to recruit the Applicant. Likewise, the Tribunal did consider the claim that the Applicant would be at risk of harm because he was a Pashtun. It referred to country information about the situation of the Pashtun in the Punjab, and noted that the Applicant’s family had lived in Lahore for at least seven years. The Tribunal further noted that the Applicant had not claimed to have suffered harm in the past because he was a Pashtun. There was, therefore, evidence on which the Tribunal could reach the view that the Applicant did not have a well-founded fear of persecution because of his race.[17]
[17] Court Book filled 26 August 2013, p.282 at para.86.
The Tribunal dealt with the complementary protection criteria at paragraphs 89 to 93 of its decision.[18] The Tribunal did not accept that the Applicant faced a real risk of significant harm from the Taliban or other militant groups or because he is a Pashtun. The Tribunal did accept that there was a certain level of risk in Pakistan from possible terrorist attacks. In considering the application of s.36(2)(aa) of the Act, the Tribunal concluded however that such a risk was one faced by the population of the country generally and not one faced by the Applicant personally. It therefore fell within the exception to the complementary protection provisions in s.36(2B)(c) of the Act. Based on its conclusions about the Applicant’s claims, the Tribunal was entitled to consider that any harm to which the Applicant might be exposed was not personal.
[18] Ibid at pp.282-283.
For these reasons, the Applicant has failed to establish that the Tribunal made a jurisdictional error.
The application is therefore dismissed.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Whelan
Associate:
Date: 18 November 2013
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