MZZKX v Minister for Immigration

[2013] FCCA 2337

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZKX v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 2337

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

Legislation:  

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.36(2)(aa)

Applicant: MZZKX

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 664 of 2013

Judgment of: Judge Riethmuller

Hearing date: 13 December 2013

Date of Last Submission: 13 December 2013

Delivered at: Melbourne

Delivered on: 13 December 2013

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the Respondents: Mr Mosley

Solicitors for the Respondents: Sparke Helmore

ORDERS

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

2. The Application filed on 16 May 2013 and the Amended Application filed on 26 November 2013 be dismissed.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 664 of 2013

MZZKX

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As revised from Transcript)

1. This is an application for judicial review of a decision of the Refugee Review Tribunal dated 11 April 2013.

2. The applicant claimed that he feared harm in Pakistan as the result of, in substance, activities of the Taliban in the Swat region.  There were a large number of incidents and significant conduct relied upon, including his activities with a small business and driving girls to school, through to attacks alleged to have been perpetrated against him and family members.

3. In substance, the Tribunal accepted that there had been insurgency in Swat but that this had been overcome by the army in 2008 and 2009.  Significantly, the applicant’s parents and brothers have returned to the Swat region, as is set out by the Tribunal at para.32 of their reasons, and the country information indicated that the army announced that people could return to Swat at the end of 2009 (see para.49 of the Court book). 

Amended Application

1. The applicant filed an amended application on 26 November 2013, listing six specific grounds for judicial review. This was supported by a written statement of contentions of fact and law filed on the same date, which runs for some seven pages, addressing the amended grounds. The applicant said that he did not prepare these documents himself, but that “a friend” prepared them. The friend, as the applicant describes the unnamed person, must have had some knowledge of the law, given that there are references in the contentions to s.39B of the Judiciary Act 1903, various parts of the Migration Act and Regulations, the relevant convention, and even some discussion by way of argument of “the existing jurisprudence on article 3 of the Convention against Torture”.

2. Whilst the submissions read with the air of a person familiar with the law, the content shows otherwise.  The content is almost entirely unhelpful in determining the matter.  In the circumstances, it seems appropriate to address each of the particulars that have been drawn in the amended application and the matters that were raised by the applicant.  Before turning to those, I should address at the outset the question of merits review compared to judicial review.

Merits Review

1. In this case, most of the particulars – and certainly a great deal of the written contentions – seek to have this Court review the merits of the decision of the Tribunal, rather than identifying any legal error or procedural error on the part of the Tribunal.  A similar problem occurred with respect to the submissions by the applicant, the bulk of which related to disputes as to the findings of the Tribunal on questions of fact, rather than errors of law.  There was, however, one claim which arguably was a procedural error and which I will deal with in due course.

2. It is not open to the Court to review the merits of the decision: the application is for judicial review not merits review.

The Grounds of Review

Ground A

1. I turn, then, to the particulars.  The first particular is as follows:

   a. The fact that the applicant has suffered no harm in the past re his involvement in girls’ education or his brother’s involvement is an irrelevant factor, given the change of circumstances with the rise of the Taliban and its increased strength and influence in the area.

2. The proposition that past events are irrelevant factors can be simply rejected.  It is obvious in ordinary human experience that events in the past and behaviours in the past are often relevant in determining the likelihood of such events or behaviours occurring again in the future.  It is, of course, obvious that the fact that a past event occurred does not necessarily mean that it will occur in the future, nor the fact that a past event did not occur does not mean that it could not possibly occur in the future; but that does not make it irrelevant in considering the likelihood of events occurring in the future.

3. The argument, therefore, that the consideration of the extent to which he may have suffered harm in the past, and the reasons for it, are irrelevant must simply be rejected.

4. The Tribunal carefully analysed what had occurred in the past, before turning to consider specifically what the future might hold, stating:

   78. The Tribunal does not accept that the applicant has been previously targeted or harmed by the Taliban or any militant groups in Swat because he has opposed them; or has been involved in girls’ education; or because his brother was involved with Muskan; or because he or his brother reported members of the Taliban to the Army.  The Tribunal does not accept that the applicant will be targeted in the future for any of these reasons, either separately or cumulatively.  The country information indicates that militant networks may still be operating in Swat but are targeting specific groups and do not have a public presence.  According to one commentator, “a full return or the establishment of a base in any part of the valley by the Taliban seems to be a distant possibility, mainly because the militants have lost support among the population.  Their organisational structure has been shattered, their leadership in hiding, and they have been unable to establish a single base in Swat”.  Dawn Newspaper has also reported that “the valley is in little danger of falling under the militant’s control again anytime soon.”  The Pakistani Army remains in control of the security, administration and reconstruction of Swat.  The Army still has about 10,000 soldiers based in Swat and plans to build permanent bases.

   79. The Tribunal is satisfied that the applicant does not face a real chance of being seriously harmed in Pakistan in the reasonably foreseeable future for a convention reason.

5. The written contentions on this topic simply challenge the Tribunal’s finding of fact about the current circumstances in Swat, relying upon the generalised claim of country information that indicates the Taliban’s influence has increased over certain parts of Pakistan in more recent times.  It seems to me that this is really a challenge to the fact finding of the Tribunal, and that this particular of the grounds should be rejected.

Ground B

1. The second particular, particular ‘b’, is in the following form: 

   b. The Tribunal has erred by concluding that the attack in May 2007 on the applicant and his family whilst driving was a part of the general treatment of the local population by the militants at the time.

2. This particular is not addressed at all in the written submissions.  It was not addressed by the applicant in his oral submissions.  It is the subject of specific findings of fact by the Tribunal in paras.66 to 67, where the Tribunal said: 

   Attack May 2007

   66. The applicant claims he was driving with family members in or near Bila in May 2007 when Taliban stopped their car and demanded money and threatened to kill them if they didn’t pay.  He claims the Taliban hit him, took the CD player from the car and told them to remove their satellite dish and they would not have any problems.

   The UN reported in 2009 that the TNSM was established in Swat in 1992 as a party seeking Islamic order.  Maulana Fazalullah took over the TNSM in 2002 and by 2007 had aligned the party with the TTP, setting up dozens of radio stations from which he sought to impose Sharia law and preached a message of holy war.  Fighting between militants and the Army erupted in July 2007, ceased briefly in May 2008, resumed in August 2008 and intensified from February 2009 when the Army began a concerted operation to retake the valley.  As part of the campaign to impose a narrow Pakhtun social order, the TNSM destroyed or closed down small businesses such as barbers and music shops.  The Human Rights Commission of Pakistan confirmed that at least 400 civilians had been killed in Swat by the end of 2007.

   67. This event occurred in 2007, when the TNSM was seeking to control the local population and impose strict social rules.  The applicant’s claim that the Taliban took the car CD player and told the applicant to remove his satellite dish to avoid any future problems is consistent with the information above.  The Tribunal accepts that the militants may also have demanded money from the local population of Swat during this time.  The Tribunal is satisfied that the applicant and his family were not specifically targeted by the Taliban at this time and that this incident was part of the general treatment of the local population by the militants at that time.

3. In the circumstances, it does not appear to me that there is a jurisdictional error in this regard, and that, really, this ground is simply a challenge to the fact finding of the Tribunal.

Ground C

1. The third ground, particular ‘c’, is as follows: 

   c. The tribunal has also erred by concluding that the attack upon the applicant’s brother was more likely as a result of the general fighting between the militants and the army.

2. It is dealt with at paras.68 to 69 of the Tribunal’s reasons, where the Tribunal says: 

   68. The applicant claims Muskan’s brother was with the Taliban and warned Muskan and Sher Mohammad Khan to end their relationship because he wanted Muskan to marry a Taliban commander; that Muskan’s family made her brother leave the Taliban and the Taliban turned against him; that the Taliban killed Muskan’s parents, another brother and nephew; that Sher Mohammad Khan was shot in the stomach and Muskan was not injured; and that Muskan’s former Taliban brother was killed 10 days later.

   The Tribunal accepts that Muskan’s family may have been killed by militants in August 2008 but does not accept that miltants attacked Muskan’s family home in the way claimed in order to kill her brother.  The Tribunal considers that, if militants wanted to kill Muskan’s brother, they would target him outside the home, as the applicant claims they did 10 days later.  The Tribunal considers it more likely that Muskan’s family, including her brother, were killed in fighting between the militants and the Army which had resumed in August 2008.  During 2008, the TNSM attacked government facilities in Swat, as well as schools, police, security forces, and video and music shops.  It has been reported that “scores” of police officers were killed and that half the district’s police force deserted in fear of the group.  The TNSM took control of the hospitals and police stations and set up checkpoints and sharia courts in areas they controlled and established a militia named the ‘Shaheen Force’, which functioned as both a criminal and morals police force.  By February 2009, an estimated 800,000 of Swat’s 1.8 million people had fled the district.

   69. The Tribunal does not accept that the applicant’s brother, Sher Mohammad Khan, was a target of the attack on Muskan’s family or that his relationship with Muskan was a reason for the attack.  The applicant provided evidence that Sher Mohammad Kahn formed a relationship with Muskan in 2005 or 2006.  He also stated that Sher Mohammad Khan was stopped many times and told to pay money prior to the incident in May 2007 discussed above.  This evidence indicates that Sher Mohammad Khan’s relationship with Muskan was not of interest to the militants as it appears they had plenty of opportunity to harm him if they wanted to.  The applicant also stated that the Taliban attacked Muskan’s house to kill her brother, not Sher Mohammad Khan.  Given the general insecurity in Swat Valley at that time, the Tribunal considers it likely that Sher Mohammad received a bullet wound in general fighting between the militants and the Army.

3. This ground was not addressed by the applicant in the written submissions, nor in oral submissions.  Again, it appears to me that this relates to findings of fact that were open to the Tribunal on the material before it, and not any error of law.

Ground D

1. The fourth ground, particular ‘d’, is in the following terms:

   d. The tribunal has also erred by concluding that the attack in the family home in December 2009 was more likely to have been destroyed in the course of fighting between the army, militants and lashkars during 2009.

2. Again, there were no submissions in the written material relating to this ground, or oral submissions.

3. The Tribunal considered these matters at paras.70 to 72 of their reasons, as follows:

   Attack on family home in December 2009

   70. The applicant claims that the Taliban attacked his family home in December 2009 because they believed he and Sher Mohammad Khan were at home.  He claims that the Taliban was looking for Sher Mohammad Khan because he had identified some members involved in the attack on Muskan’s house and that the Taliban was looking for the applicant because he had agreed that those people should be arrested.

   71. The Tribunal accepts that the applicant’s house may have been attacked during 2009 but does not accept that it was attacked for the reasons claimed.  The claimed attack on Muskan’s home occurred in August 2008 and the claimed attack on the applicant’s home occurred in December 2009.  The Tribunal does not accept that the militants would wait 18 months to attack the applicant’s family home, at a time when neither he or his brother were there, if they wanted revenge for the naming of members to the Army and to kill the applicant and his brother.  The Tribunal also considers it likely that militants in a tribal community such as Swat would have been aware that Sher Mohammad Khan was overseas at the time of the attack.  The Tribunal does not accept that the Taliban targeted the applicant at that time because he agreed that some people should be arrested.

   72. The applicant stated that his family home is a kilometre from an Army base.  There was intensive fighting in Swat during 2009 between militants and the Army.  In April 2009, the Pakistani government negotiated a peace deal with the TNSM after offering a number of concessions including the imposition of sharia in Swat, however, the cease-fire was short-lived and the Army commenced a large-scale offensive against the TNSM in late April 2009.  Heavy fighting continued through May, with widespread civilian displacement and, by late June 2009, the Army claimed to have cleared the militants from Swat although according to some reports, the military operation only succeeded in gaining control of the urban centres and major roads of the Swat valley.  The Tribunal considers it most likely that the applicant’s home was destroyed in the course of fighting between the Army, militants and lashkars during 2009.  The applicant stated that his family moved to Peshawar soon after the attack on their house because the Army said it couldn’t provide security.  This suggests that the attack occurred earlier in 2009, before the Army secured Swat in about June 2009.

4. Again, this appears to be a challenge to the fact finding of the Tribunal, rather than arguing any particular error of law.  For these reasons, the applicant cannot succeed on this ground.

Ground E

1. The next ground is particular ‘e’, which is in the following terms:

   e. The tribunal has erred by not accepting that the applicant faced a real chance of serious harm for reasons of his political opinion (that is anti Taliban) if he returns to the Swat area now or in the reasonably foreseeable future.

2. This ground is the subject of written submissions by the applicant.  In those submissions, it is reiterated that the harm that the applicant fears is not from the State of Pakistan, but from non-state actors, including the Taliban and other extremist groups.  The submissions go on to discuss the availability of the State protection and the fact that the applicant claims that he is not able to be protected by the State. 

3. These matters were dealt with at paras.78 and 79 of the Tribunal’s decision, which I have set out above.  The Tribunal formed the view that given the current circumstances in the Swat region that there was no longer a real risk to the applicant.  The Tribunal specifically found that the Pakistani Army remains in control of the security, administration, reconstruction of Swat, and that there are about 10,000 soldiers based in Swat with plans to build permanent bases.  On the material before the Tribunal, it was open to them to make such findings.  They have made findings of fact.  Those findings seem to me to be sufficient to deal with the claims about the Swat region.  In these circumstances, I therefore dismiss this ground on the basis that it, in substance, really suits merits review.

Ground F

1. The next ground, particular ‘f’, is as follows:

   f. The tribunal has erred in that there is sufficient evidence to conclude that there are substantial grounds for believing there is a real risk he will suffer significant harm, including generalised violence and being unable to rely upon the protection of the State in the Swat area.

2. This is supported by submissions that the Tribunal misinterpreted the criteria in s.36(2)(aa) of the Act (the complementary protection provisions) and that, therefore, the Tribunal came to the incorrect conclusion. The argument in the written submissions is based upon a commentary alleged to have been written by Dr Jane McAdam in the Tribunal’s complementary protection manual, suggesting that on the existing jurisprudence, the standard of proof necessary for a complementary protection claim is less than that necessary for a convention claim.

3. It seems to me that, in this case, the Tribunal have squarely addressed the complementary protection issue at paras.80 to 81, where they said:

   80. The Tribunal has considered whether there are substantial grounds for believing that there is a real risk the applicant will suffer significant harm if removed from Australia to Pakistan.

   81. In view of the country information above regarding the limited operation of militant groups in Swat, the absence of organisational structure or leadership, the lack of local support, the establishment of lashkars to resist the re-emergence of militant groups and the large Army presence in Swat, the Tribunal is satisfied that there are not substantial grounds for believing the applicant faces a real risk of significant harm if he is removed from Australia to Pakistan.

4. The reality is that the Tribunal made a factual finding and that there were not substantial grounds for believing that the applicant faced a real risk of significant harm if he was removed from Australia to Pakistan.  These words used are the words of the section.  The findings are based upon the fact-finding set out in some detail previously.  In the absence of any finding that there was a risk to the applicant presently, it does not seem to me that he could succeed under this provision of the Act, in any event.  In substance, this is merits review dressed up to attempt to make it look like a legal review.

Further argument at the hearing

1. The applicant at the hearing sought to rely upon further bundles of country information to have me review the merits of the Tribunal decision, which is not permissible under the law.  The applicant did, however, raise in oral argument for the first time a claim that the Tribunal member was told by his advisor that they could provide further proof but that the member said that they did not want anything else.  The applicant, despite directions when the matter was set down for hearing to file all evidence by way of affidavit and to provide transcripts for any recording that might be sought to be presented, has not filed any affidavit evidence to this effect and has not obtained an audio recording of the hearing, nor provided any transcript. 

2. There is simply no evidence of exactly what was said by the Tribunal member in this regard at the hearing.  In the absence of any actual evidence of what the Tribunal member has said, it is not appropriate for me to make a finding that the Tribunal member erred in some way by prohibiting the applicant from presenting material.  It seems unlikely that that would have been the course, given that there is considerable material that has been presented to the Tribunal, and considered by the Tribunal member, in the making of the decision.  In the circumstances, I am therefore not persuaded that the applicant has made out this ground of the review.

3. I therefore dismiss the applicant’s application.

[Further argument ensued]

Costs

1. In this matter, the applicant has been unsuccessful.  The Minister seeks costs in the sum of $5400.  The amount of costs sought is less than the scale fee in the Rules, and in the circumstances, I find that it is a reasonable sum.  There is nothing in the material to indicate that costs should not follow the event. 

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  21 January 2014