NARC v Minister for Immigration
[2004] FMCA 331
•22 April 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NARC v MINISTER FOR IMMIGRATION | [2004] FMCA 331 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether lack of procedural fairness. |
Migration Act 1958
Muin v Refugee Review Tribunal (2002) 190 ALR 601
NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 293
NADD v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 275
Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration & Multicultural Affairs v Radjimadigan (2002) 210 CLR 222
Australian Broadcasting Tribunal v Bond (1991) 70 CLR 321
Minister for Immigration; Ex Parte Applicant S20 of 2000 (2003) 198 ALR 59
| Applicant: | NARC |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ1252 of 2003 |
| Delivered on: | 22 April 2004 |
| Delivered at: | Sydney |
| Hearing date: | 22 April 2004 |
| Judgment of: | Barnes FM |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Mr A. McInerney |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
That the application is dismissed.
That the Applicant pay the Respondent's costs fixed in the amount of $4,250.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ1252 of 2003
| NARC |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 26 February 1997 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa. The applicant who is a national of Pakistan, arrived in Australia in 1989. His entry permit expired in 1990. He applied for refugee status on 22 November 1993 and after subsequent changes in the legislation that application was dealt with as an application for a protection visa. The delegate's decision to refuse the applicant a protection visa was made on 2 May 1995 and the applicant sought review by the Tribunal on 25 May 1995.
The applicant's claim centred on his residence in Karachi in Pakistan in Sindh province. He claimed to fear persecution on the basis of discrimination against him as an ethnic Punjabi and because he was regarded as a Mohajir because he was not a Sindhi, and also because he supported the Punjabi political party (the PPI). He claimed that he had been subjected to verbal abuse and on one occasion robbed and wounded in passing through a Mohajir neighbourhood. He claimed that he could not obtain help from authorities because most of them were MQM sympathisers (the Mohajir political party). He also claimed that he and his family had been threatened by members of the MQM at their home and that some of his father's equipment had been vandalised on one occasion.
He claimed that if he returned to Pakistan he would face permanent institutionalised unemployment and exposure to random violence and that his support for the PPI could have made the situation worse. He claimed that members of both the MQM and the PPP (the Sindhi political party) were looking for him and that if he moved to the Punjab he would encounter financial problems. He made claims in relation to employment, education and physical harassment or violence that he had experienced and he claimed to fear should he return to Pakistan.
The Tribunal found that the applicant did not meet the requirements of the Refugee Convention. The Tribunal had serious difficulty in accepting that the applicant had a genuine subjective fear given his history of travelling to Australia as a student in 1989, the time that had elapsed before he lodged his application for refugee status in 1993 and the fact that he had secured a new passport in 1994. The applicant indicated that he did not wish to stay permanently in Australia and would return when there was a suitable employment and personal safety situation in Bangladesh. The delay in application and the renewal of the passport cast doubt on the validity of his claim to fear persecution.
The Tribunal also took into account a range of independent information in relation to the situation of Punjabis in Pakistan. It dealt specifically with the applicant's claims in relation to employment, education and physical harassment. The Tribunal found based on independent information that ‘Punjabis in Pakistan do not suffer a sustained or systematic violation of basic human rights demonstrating a failure of state protection which would constitute persecution’. It went on to consider whether, despite this, the applicant had provided evidence of particular circumstances providing the basis for such a fear.
In relation to employment, it found that, as the applicant had told the Tribunal, his father had operated a business in Karachi for some considerable time and that the applicant, himself, had had suitable employment from some months after completing his education until he left Pakistan.
In relation to education, the Tribunal found that the applicant had completed his secondary education, undertaken technical training and that his siblings were students in Karachi at the time of the hearing.
In relation to the claims of physical harassment or violence, the Tribunal formed the view that the applicant had exaggerated the extent to which he was identified as a Punjabi and suffered serious threats or harm in consequence. The Tribunal had regard to his birth and upbringing in Karachi and his education in the Urdu language. Apart from some generalised harassment and name calling, his difficulties appeared to stem from having to walk through a predominantly Mohajir area, and because of his support for the PPI. However the Tribunal accepted the applicant's evidence that he was not a member of the party, and that his involvement was low key. The Tribunal did not accept that he was a political activist or was targeted because of his political opinion. It considered the specific claim that he had been attacked, injured and robbed on one occasion in 1988 or 1989 in a Mohajir area. It accepted that the applicant may have experienced harassment and hostility from local Mohajirs in his area, but did not accept his highly implausible claim that just because he was a Punjabi, who walked to work through a Mohajir area, the MQM targeted him and his family and demanded information about his whereabouts, nor did it accept that they would still be concerned about him and his whereabouts more than seven years later or that he would face persecution by the MQM on return to Pakistan.
The Tribunal had regard to the fact that the authorities’ protection had not been withheld. A policeman had responded and assisted the applicant, although the police had not carried out investigation to the extent sought by the applicant.
The Tribunal was satisfied that the applicant’s circumstances in Karachi were not such as to amount to persecution for a Convention reason. In any event he had been able to access protection on the one occasion of actual harm. Nor was it satisfied that the applicant would face a real chance of persecution or harm for a Convention reason on return to Karachi after more than 7 years.
Furthermore, the Tribunal went on to find that the applicant could avoid any difficulty by re-locating elsewhere in Pakistan including Punjab province. It made findings in relation to the situation of Punjabis in Pakistan, that the applicant would not face discrimination as a Punjabi in most parts of Pakistan including the Punjab province and that he had been willing to undertake the more significant dislocation to Australia and that he acknowledged that he could go to the Punjab.
The Tribunal considered obstacles that the applicant had raised in relation to relocation when the issue was discussed with him in the course of the hearing. It accepted that such a move may involve family relocation and some economic difficulty, but concluded that it was nonetheless open to the applicant.
It emerged during the course of the hearing that the applicant was part of the Muin (see Muin v Refugee Review Tribunal (2002) 190 ALR 601) class action from July 1999. His involvement ceased on 19 June 2003. He commenced these proceedings in the Federal Court on 29 May 2003. The matter was transferred to this court.
The application for review raises a number of grounds. Others were raised today. The first ground was that there was a failure to comply with section 418(3) of the Migration Act 1958 and a consequent denial of procedural fairness to the applicant. It was also claimed that there was a failure to comply with section 423(3) (sic).
Section 418 deals with the requirement that the Secretary of the Department of Immigration be notified of the making of an application to the Tribunal. Subsection (3) obliges the Secretary to give the Registrar of the Tribunal each document in his or her possession or control considered to be relevant to the review. There is no subsection (3) of section 423, which permits an applicant to give a statutory declaration and written arguments to the Tribunal and the Secretary to give written argument.
No breach of ss.418, 423 or of any other provision in the Migration Act is apparent on the material before the court. However from what the applicant said in oral submissions today it appears in referring to these provisions that he was arguing that his case was on all fours with the Muin decision and that there was a denial of procedural fairness. Muin stands for the proposition that procedural fairness will have been denied in a case where an applicant is misled into thinking that the Tribunal has considered relevant information so that the applicant does not place information before the Tribunal which he might otherwise be able to put. (See NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 293 at [24] Kiefel J and NADD v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 275 at [26]).
In this case the applicant complained generally that the Tribunal had not considered properly country information provided and that an unidentified letter sent to him by the Tribunal was incorrect. However, the applicant has not established the factual matrix on which Muin depended. There is no evidence that the applicant was misled by the Tribunal, or indeed of what he would have done had he known (if it were the case) that relevant information was not before the Tribunal. Muin proceeded on the basis of agreed facts. There is no such agreement in the present case and the applicant has not established each of the factual matters necessary to succeed with such an argument. No denial of procedural fairness is apparent.
The applicant also claimed without particularisation that the Tribunal erred in misconstruing or misapplying the Refugees Convention by failing to consider whether he had a well-founded fear of persecution. However, no such error is apparent. The Tribunal did consider whether the applicant had a well-founded fear of persecution for a Convention reasons. It considered both the subjective and objective elements of well-founded fear. The findings made by the Tribunal in this regard were open to it on the material before it.
The applicant also complained that the Tribunal failed to comply with the requirements of section 430 of the Migration Act by not setting out its findings on material questions of fact. In oral submissions the applicant complained generally that the Tribunal decision was not related specifically to his situation and was pre-prepared and that the Tribunal had not considered his personal circumstances. Such complaints are not made out on the material before the court. The Tribunal considered the particular circumstances that the applicant set out in his statement and the claims he made in the Tribunal hearing.
I asked the applicant what was not considered by the Tribunal. The applicant stated that he had told the Tribunal that he was harassed and his family was threatened and that he was tortured and hurt on the hand. The Tribunal not only recorded these claims but also considered and dealt with them in its reasons for decision. In particular it considered his claims to have been attacked and robbed on one occasion and to have suffered a knife wound to his hand. It accepted that he may have experienced some harassment and hostility from local Mohajirs. Its findings that his circumstances did not amount to persecution or that he would face a real chance of persecution should he return to Karachi were open to it and no error is apparent. The Tribunal set out findings on material questions of fact.
The Tribunal also considered the issue of relocation and the applicant's claim that it would be hard for him to relocate. It addressed the obstacles that the applicant raised to relocation in accordance with the principles in Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437. As to the claim about the father's factory having burnt down, the Tribunal records that the applicant acknowledged that his father had now retired and no longer ran the business as at the time of the Tribunal decision. It was aware of his claims in this regard. It also considered his claims in relation to employment difficulties. The material before the court does not reveal any failure by the Tribunal to consider any element of the applicant's claims or, indeed, to set out its findings on material questions of fact.
The applicant also claims, without elaboration, that the decision was manifestly unreasonable. However, the findings made by the Tribunal were based on the evidence before it which was probative the issues to be decided (Minister for Immigration v Rajamanikkan (2002) 210 CLR 222 at [25], Australian Broadcasting Tribunal v Bond (1991) 170 CLR 321 at 367 per Deane J and, Minister for Immigration; Ex parte Applicant S20 of 2000 (2003) 198 ALR 59 [163] per Kirby J). No illogicality is pointed to or apparent in the Tribunal's reasoning. The applicant effectively takes issue with the merits of the Tribunal reasons. However merits review is not available in this court.
I have considered all of the material before me and the matters raised by the applicant in his application and also in oral submissions. No jurisdictional error is apparent. Accordingly the application should be dismissed.
RECORDED : NOT TRANSCRIBED
The applicant has been unsuccessful and the respondent seeks that he meet the costs of these proceedings. It is appropriate that costs be met by the applicant. I consider that in light of the nature of this and other similar matters the amount sought, $4,250 is appropriate and that costs should be fixed in accordance with the Federal Magistrate Court Rules.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 28 May 2004
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