MZZYK v Minister for Immigration

[2014] FCCA 3209

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZYK v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 3209

Catchwords:
MIGRATION – Refugee Review Tribunal – protection visa – whether tribunal took into account an irrelevant consideration – whether tribunal biased – whether tribunal correctly applied the complementary protection criteria.

Cases cited:
Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1, (2004) 78 ALJR 678, (2004) 77 ALD 296, (2004) 205 ALR 487, [2004] HCA 18

Applicant: MZZYK

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: MLG 2351 of 2013

Judgment of: Judge Riley

Hearing date: 30 June 2014

Date of last submission: 30 June 2014

Delivered at: Melbourne

Delivered on: 30 June 2014

REPRESENTATION

Counsel for the applicant: The applicant appeared in person

Solicitors for the applicant: The applicant was not represented

Advocate for the first respondent: Jonathan Hutton

Solicitors for the first respondent: Australia Government Solicitor

Counsel for the second respondent: No appearance

Solicitors for the second  respondent: Australia Government Solicitor

ORDERS

1. The application filed on 24 December 2013 be dismissed.

2. The applicant pay the first respondent’s costs, fixed in the sum of $6,646.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2351 of 2013

MZZYK

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First respondent

REFUGEE REVIEW TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

(revised from the transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal (“the tribunal”).  The applicant is a citizen of Pakistan who arrived in Australia on 28 April 2012.  At that time, he held a student visa and a passport issued by the Pakistani government.

2. The applicant applied for a protection visa on 18 December 2012.  The applicant claimed that he was a Sunni Muslim of the Pashto ethnicity.  He said that the Taliban carried out targeted killings in his home region of Darsamand.  He said that there were regular suicide bombings and kidnappings in that area and that his village had been infiltrated by the Taliban.

3. The applicant said that in February 2009, he was stopped by members of the Taliban and asked why he did not have a beard or a hat.  He said that he was slapped and kicked and threatened with harm if he reported the matter to the police.

4. The applicant also claimed that in May 2009, the Taliban kidnapped his cousin and demanded a ransom.  He said that the ransom was not paid and the cousin was killed in October 2009.

5. The applicant also claimed that, in January 2010, he was travelling with his cousin and they were again asked by members of the Taliban why they were not wearing beards or caps.

6. The applicant said that in February 2010, his father received a letter from the Taliban.  It warned him not to speak publicly against the Taliban.  The applicant claimed that his father had spoken at a Mosque against the Taliban.  The applicant said that his father left Pakistan in March 2010 to avoid being harmed.

7. The applicant said that in June 2011, his family was asked by a woman who had Taliban connections for her son to marry the applicant’s sister.  The applicant’s family refused this proposal because the applicant’s sister was only 13 years old at the time.  The applicant said that the Taliban conveyed to the applicant’s mother that the family really should accept the offer if they wanted to avoid being harmed by the Taliban.  However, the family did not accede to the request.

8. The applicant said that the village leader told the family that the eldest male in the family would be targeted if the offer was not accepted.  The applicant was the eldest male in the family, given that the father was away at that time in Saudi Arabia.

9. The applicant said that, in the face of these threats, he went to live at his uncle’s house and made arrangements to come to Australia.  The applicant said that he feared the Taliban would target him if he went back to Pakistan.  He said that he could not relocate within Pakistan because the Taliban have an extensive network, they would learn of his return to Pakistan and he would be targeted wherever he went in Pakistan.

10. The delegate of the Minister refused the protection visa application. The applicant applied for review by the tribunal. 

11. The tribunal accepted most of the applicant’s claims, notwithstanding some concerns about inconsistencies in the applicant’s evidence.  The tribunal accepted that there had been the proposal to the applicant’s sister and that the Taliban had threatened the family when the proposal was refused. The tribunal accepted that the applicant had been challenged by the Taliban and physically assaulted by being slapped and kicked.  The tribunal found the claims of the applicant overall to be plausible and accepted that, if he were to return to his home district of Hangu, he would be at risk of serious harm from the Taliban.

12. The tribunal accepted that the applicant’s father had publicly spoken against the Taliban in a Mosque.  However, the tribunal noted that the applicant’s father had not attended the local Mosque and preached again since March 2010 and considered that there was no evidence that the applicant’s family or the applicant’s father had suffered any adverse action from the Taliban in relation to that matter in the intervening years.

13. The tribunal considered that the State of Pakistan could not adequately protect the applicant if he were to return to Hangu.  However, the tribunal formed the view that the applicant could relocate elsewhere within Pakistan.  The tribunal considered that neither the applicant nor any member of his family were known outside Hangu or the Peshawar area and considered that the Taliban would not track him down elsewhere in Pakistan.

14. The tribunal considered that there was no reason, based on the applicant’s Pashtun ethnicity or because he was a Pashtun from Hangu or a Pashtun with a beard, that he would suffer serious harm outside his home province.

15. The tribunal also considered that there was no real chance that the applicant would be harmed because of his residence in Australia because he might be considered a spy or infidel outside the Khyber-Pakhtun Khwa (“KPK”) province.

16. In relation to whether the applicant might come to the attention of potential kidnappers because his family is relatively wealthy, the tribunal considered that the chance of anything untoward occurring was remote. 

17. The tribunal considered that the particular circumstances of the applicant meant that it would be reasonable for the applicant to relocate within Pakistan.  The tribunal noted that the applicant is a Sunni Muslim who can speak English, Urdu and Pashto, who is highly educated and who has work experience.  He has been able to adapt to life in a foreign country, namely Australia, and he came from a relatively wealthy family.

18. The tribunal considered that, in these circumstances, it would be reasonable for the applicant to relocate to another large city in Pakistan.  The tribunal considered that the applicant would be safe in such a large city.

19. The tribunal directly addressed the complementary protection provisions and concluded that the applicant would not suffer significant harm for any reason, including generalised violence, abduction or kidnapping, outside his home province.

20. The applicant appeared before this court without a lawyer. His application appears to have been drafted without the assistance of a lawyer.  It has three grounds. 

21. The first ground in the application is: 

    The tribunal took into account an irrelevant considration been fact that I did not any thing about protection visa, and tribunal took in considration that I applied late. (errors in the original)

22. The tribunal did note that the applicant came to Australia on a student visa and did not apply for a protection visa until eight months later.  However, the tribunal did not rely on that circumstance to disbelieve the applicant’s claims or to disbelieve that the applicant had a genuine subjective fear.  The tribunal would have been able to rely on the delay in making the protection visa application to doubt the applicant’s subjective fear.  However, it did not.

23. The applicant has not identified any other allegedly irrelevant consideration that the tribunal took into account, and there do not appear to me to be any.  The first ground is not made out. 

24. The second ground in the application is as follows:

    The tribunal member made a baised decision. (error in the original)

25. The applicant has not provided a transcript of the tribunal hearing to support his claim that the tribunal member was biased.  The tribunal’s reasons for decision do not provide support for the claim that the tribunal member was biased.  In its decision, the tribunal appears to have carefully considered all of the applicant’s claims and, indeed, has accepted the vast majority of them.  The applicant, when asked to expand on this ground, said that the tribunal admitted that the authorities cannot protect themselves in Pakistan and said that in those circumstances, the tribunal should have accepted that it was not safe for him to return to Pakistan.  The applicant, in particular, drew the court’s attention to the first sentence of paragraph 55 of the tribunal’s reasons.  That sentence is:

    The applicant claims that the authorities in Pakistan cannot protect him as the authorities are themselves in danger from the Taliban.

26. The tribunal in that sentence recorded a claim by the applicant, rather than an admission by the tribunal, that the Pakistani authorities could not protect themselves.  However, the tribunal did go on in paragraph 55 of its reasons for decision as follows:

    Given the nature and seriousness of the violence from the Taliban in the KPK province, together with the weight of the independent information indicating that the authorities in Pakistan are struggling to contain that violence, the Tribunal accepts that the state of Pakistan cannot meet the level of protection which citizens are entitled to expect as discussed in MIMA v Respondents S152/2003 (2004) 222 CLR 1. For these reasons the Tribunal accepts that the applicant faces a real chance of serious harm for the reasons discussed in the preceding paragraph if he returns to the Hangu area now or in the reasonably foreseeable future.

27. Clearly, the tribunal accepted that the State could not adequately protect the applicant in the Hangu area.  However, the tribunal then went on to consider the issue of relocation.  That was dealt with in paragraphs 56 to 65 of the tribunal’s reasons for decision.  The tribunal, in those paragraphs, considered the evidence before it and concluded that the applicant and his father and family are not known outside the Hangu district or the KPK province in Pakistan.  The tribunal also concluded that the chance of the Taliban tracking the applicant down outside the KPK province was remote and farfetched.

28. In view of that finding, the tribunal did not accept that there was a real chance that the applicant would come to the adverse attention of the Taliban or be subjected to serious harm from the Taliban outside his home province.  It is implicit in the tribunal’s reasons for decision that the applicant would not need state protection outside his home area.

29. The tribunal, in paragraph 64 of its reasons for decision, said that it did not accept that there was a real chance of the applicant suffering serious harm from generalised violence, including abduction and kidnapping, if he relocated to one of the large cities or towns in the Punjab or Sindh.  The tribunal evidently considered that the chance of anything untoward occurring to the applicant was remote.  The tribunal said in paragraph 64 of its reasons for decision, after looking at certain country information provided by the applicant’s agent:

    … the Tribunal does not accept that the available information indicates that the generalised violence which exists in Pakistan is sufficiently widespread or endemic or significant to justify a finding that there is a real chance of the applicant suffering harm that would make relocation unreasonable for the applicant.

30. These passages do not suggest that the tribunal was biased.  The tribunal came to a particular view, but appears to have considered the available information and formed a view on the basis of that information. 

31. The allegation of bias is a very serious one. It is an allegation that needs to be clearly articulated and clearly established. It seems to me that the applicant’s claim in this regard is simply a dispute with the tribunal’s ultimate conclusion, rather than a demonstration that the tribunal was, in fact, biased in this case.  The essence of bias is that the decision-maker’s mind is closed to anything that might be put to it that is contrary to the decision that it has already reached.  Nothing that the applicant has said substantiates such an allegation in this case.  This ground is not made out.

32. The third ground in the application is as follows:

    The tribunal member did not apply [the] complementry protection criteria correctly. (error in original)

33. The applicant, when asked to expand on this ground, said that he had read that a small fear was sufficient to substantiate the complementary protection requirements.  The applicant said that he found that in the definition of “complementary protection”.  What the complementary protection regime actually requires is that there be a real risk of significant harm to a person.  That imposes an objective test.  In this case, the tribunal appears to have accepted that the applicant did have a subjective fear.  However, the tribunal considered that it was not objectively well-founded, insofar as the applicant was able to internally relocate.

34. The applicant, in this context, relied again on his claim that the authorities cannot protect themselves.  However, the tribunal carefully considered the information about violence elsewhere in Pakistan and concluded that the applicant would not be at significant risk either from the Taliban or from generalised violence outside his home province. 

35. The tribunal dealt with the complementary protection issue at paragraphs 67 to 70 of its reasons for decision, and also provided an appendix to those reasons which set out relevant law. In paragraphs 85 to 90 of the appendix, complementary protection was discussed by the tribunal.  That discussion seems to me to be free of any jurisdictional error.  The passages in the body of the tribunal’s reasons for decision concerning complementary protection (in paragraphs 67 to 70) similarly seem to me to be free of jurisdictional error.  The tribunal considered that the applicant may face a real risk of significant harm in the Hangu area but formed the view that there were no substantial grounds for believing that he faced a real risk of significant harm in other areas of Pakistan.  I am unable to detect any error in the tribunal’s reasons for decision in relation to complementary protection.  This ground is not made out.  

36. I have read the tribunal’s reasons for decision. I am unable to see any error in it of a type that would permit this court to set it aside.  In the circumstances, the application must be dismissed

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate: 

Date:  20 January 2016