SZAFZ v Minister for Immigration

[2003] FMCA 404

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAFZ v MINISTER FOR IMMIGRATION [2003] FMCA 404

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political and ethnic persecution in Pakistan – no reviewable error found.

Migration Act 1958 (Cth), s.91R, 474

Applicant: SZAFZ

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ306 of 2003

Delivered on: 12 September 2003

Delivered at: Sydney

Hearing date: 12 September 2003

Judgment of: Driver FM

REPRESENTATION

The applicant appeared in person

Counsel for the Respondent: Mr R Bromwich

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The application is dismissed.

2. The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ306 of 2003

SZAFZ

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 7 February 2003 and handed down on 27 February 2003.  The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The background information relevant to this matter is accurately set out in written submissions filed on behalf of the Minister by Mr Bromwich in paragraphs 1 through to 7, and I adopt those paragraphs for the purposes of this judgment:

   On 14 March 1997, the applicant, a citizen of Pakistan, arrived in Australia on a visitor’s visa.  He has a brother who resides in Australia (court book, page 116.1).  The applicant applied for two six month extensions to his visitor’s visa and then applied for a special needs relative visa (his sister-in-law having had a miscarriage).  This application was refused by a delegate of the respondent.  The delegate’s decision upheld by the Migration Review Tribunal (“the MRT”).  A subsequent application to the respondent to be considered on humanitarian grounds was also refused  (court book, page 117.6).

   On 25 July 2000, after his humanitarian application was refused, [the applicant] lodged an application for a protection (class XA) visa with the respondent’s department, upon the grounds of race and political opinion.  This was said to arise from being a Mohajir, and a supporter of the Mohajir Quami Movement (MQM) (court book, page 24).

   According to country information referred to by the RRT, the Mohajirs were the Urdu-speaking Muslims who migrated to Pakistan from north‑central India in the years immediately following the creation of Pakistan in 1947.  The term also applies to their descendants (court book, page 118.7 [6.99]).

   The MQM is a nationalist movement formed in 1984 through the union of Karachi University student groups, seeking official recognition of Mohajirs and the fifth ethnic/national group of Pakistan after the Punjabis, Sindhis, Baluchis and Pathans (court book, page 119 [6.102]).

   On 29 August 2000, a delegate of the respondent refused the grant of a protection visa (court book, page 51-57).

   On 29 September 2000, the applicant applied to the RRT for a review of the delegate’s decision.  On 6 January 2003, the applicant was invited to attend a hearing of the RRT (court book, page 78) and with his response to the invitation he provided further documents in support of his application (court book, pages 81-111).

   On 27 February 2003, the RRT handed down a decision made on 7 February 2003, affirming the decision of the delegate to refuse the grant of a protection visa (court book, page 112).  In reaching this decision, the RRT accepted that the applicant was a national of Pakistan and that he was a Mohajir and that he was involved with the MQM to the extent of attending rallies at election time and being involved in fund raising to distribute to the poor (court book, pages 122.8-123.1).  However the RRT did not accept that he had a well‑founded fear of persecution for a Convention reason arising out of his ethnicity, political activity or any other Convention reason (court book, page 123.1).

2. In addition, in paragraph 8, Mr Bromwich sets out conveniently a summary of the reasons of the RRT for affirming the decision of the delegate and I also adopt that paragraph for the purposes of this judgment:

   The RRT’s reasons for affirming the delegate’s decision were that:

   a)while independent evidence indicated there had been some level of discrimination against Mohajirs in Pakistan in response to the disproportionate influence they exerted in the years following partition, the applicant had been able to obtain a tertiary education, gain employment in his professional field and been able to undertake further studies abroad;

   b)the applicant’s own evidence did not suggest he had been subjected to serious mistreatment [cf s.91R(1)(b) of the Migration Act 1958 (Cth) (“the Migration Act”)];

   c)independent evidence did not suggest Mohajirs face persecution because of their ethnic origin;

   d)the applicant’s evidence was that he was not a member of the MQM and had only been peripherally involved at a very low level, not as a leader or someone involved in militant activities;

   e)the applicant had lived at the same address and worked at the same job until he left Pakistan, indicating he was not of interest to the authorities or to rival political groups;

   f)while the applicant claimed friends and family had been killed in political violence in Pakistan, his evidence did not suggest that he personally had any problems with the authorities, with no claims to have been questioned, detained or arrested at any time;

   g)the applicant did not claim to have been targeted by other political groups, making the chance that he would be targeted on return to Pakistan remote irrespective of whether or not he was recognised as someone with prior involvement with the MQM;

   h)the applicant’s evidence that he is not involved with the MQM in Australia and does not intend to be involved if he returns to Pakistan makes the chance that he would be targeted on his return even more remote;

   i)while Pakistan is a violent country and the applicant feared returning there, the RRT could not be satisfied that he had a well-founded fear of persecution either because he is a Mohajir or because of his former involvement with the MQM;

   j)if the applicant wishes to avoid living in Karachi, it would be reasonable for him to move to some other city in Pakistan;

   k)while the applicant might have difficulty in finding employment in another city, there was nothing to suggest Mohijirs are precluded from moving to other parts of Pakistan or are at risk of being persecuted if they do so.

3. In brief, the applicant is from Pakistan and claimed political persecution in Pakistan by reason of his membership of the MQM and also persecution based on his being a member of the Mohajir community in Pakistan.  The presiding member accepted substantially what the applicant presented to the RRT but considered that on the applicant's own account, he did not have a well founded fear of persecution in Pakistan.  The description by the applicant of his activities in support of the MQM movement did not establish that the applicant had a high political profile.

4. In addition, while the RRT accepted that the applicant had a fear of harm should he be required to return to Pakistan, the applicant had failed to establish that he was likely to suffer harm for any Convention reason.  The RRT accepted that there is some discrimination in Pakistan against Mahajirs but found that the extent of discrimination did not constitute persecution.  In particular in the applicant's case, his own account did not establish that he had suffered any serious detriment. 

5. In paragraphs 9 through to 14 of his written submissions Mr Bromwich deals with the application for review filed by the applicant on 7 March 2003.  I agree with those paragraphs of Mr Bromwich's submissions and adopt them for the purposes of this judgment:

   The application for review filed in this Court asserts as grounds that the RRT’s decision is wrong and liable to be set aside (for unspecified reasons); and that not all the material facts had been considered before making the decision; and that a detailed submission would be filed upon seeking legal advice. 

   There are no particulars as to what material facts have not been considered.  It is not apparent that anything advanced by the applicant has been overlooked.  It follows that there is no proper basis for concluding that there has been any error at all on the part of the RRT, let alone jurisdictional error.

   By written submissions, the applicant alleges that the RRT had not considered the current situation in Pakistan, particularly in the context of his personal circumstances and membership of MQM (para 1); that he believes that the RRT has made an error of law involving an incorrect interpretation of the law to the facts as found (para 3); and that the RRT’s decision was based on media information rather than reality (para 5).  Paragraphs 2 and 4 make only assertions of fact as to what was provided to the RRT (an enormous amount of evidence) and as to the certainty that he will face persecution from the authorities and opposite political groups upon returning to Pakistan.

   It is clear that, contrary to the applicant’s submissions the RRT did consider the current situation in Pakistan. 

   There was no apparent error in the interpretation of the law by the RRT.  The applicant failed because he barely asserted, let alone established, grounds for concluding that he had a well-founded fear of persecution on Convention grounds. 

   The RRT did have regard to independent country information in assessing the applicant’s claims.  However there is nothing wrong with that.  There was no error in the approach of the RRT.

6. In addition, Mr Bromwich dealt in oral argument with written submissions filed by the applicant on 3 September 2003 and read on to the court record by the applicant today.  The applicant made five arguments.  The first is that the RRT had not considered the current situation in Pakistan, particularly in the context of his personal circumstances and his membership of the MQM.  That submission is plainly incorrect based upon a reading of the decision of the RRT.  The RRT did consider the situation in Pakistan and the applicant's involvement with the MQM.

7. Secondly, the applicant asserts that he submitted an enormous amount of evidence to the RRT and also made oral submissions at a hearing before the RRT explaining why he believes he would suffer harm in Pakistan.  The applicant told me that he considered that the RRT should have reached a different conclusion based upon the material he presented to the RRT.  He is entitled to hold that view but it amounts to no more than disagreement with the decision made by the RRT.  As I explained to the applicant, I am unable to review the RRT decision on its merits.

8. The third submission made by the applicant is that the RRT committed an error of law involving an incorrect interpretation of the law to the facts and a failure to follow proper procedures as required by the law in connection with the making of the decision.  However, apart from making this general assertion, the argument was not developed.  It appears to me from a reading of the RRT decision and reasons that the presiding member made no such error.  The presiding member clearly applied the correct legislation and the relevant provisions of the Refugees Convention and Protocol and understood the approach to be taken to properly assess whether the applicant satisfied the definition of a refugee.  I see no error of law in the approach taken by the presiding member.

9. The fourth argument advanced by the applicant is simply a further challenge to the RRT decision on its merits.  Lastly, the applicant asserts that the RRT made a decision based entirely on media information rather than reality.  As I pointed out to the applicant, the RRT did have regard to country information and that country information relied on was primarily information downloaded from the website of the United Kingdom Home Office, a United Kingdom government department.  It is not media information.  The applicant asserted that the information is nevertheless unreliable because it may have come from Pakistan Government sources who are not to be believed.

10. It is not possible to determine where the assessments in the Home Office material came on and to what extent they were influenced by Pakistan government sources.  In any event, a dispute about the reliability of country information does not advance beyond a dispute about the merits of the RRT decision.  It does not bear upon any relevant legal issue in these proceedings. 

11. I find that no jurisdictional error was committed by the RRT.  In addition, I find that the Hickman provisos to the application of the privative clause in s.474 of the Migration Act are satisfied. Accordingly, the decision of the RRT is a privative clause decision. I will dismiss the application.

12. Mr Bromwich has asked for a costs order in the sum of $3,500.  The Minister's actual legal costs would be in excess of $5,000, including counsel's fees.  Based on the amount of preparation that has been done, including the preparation of written submissions, and including a response to the applicant’s arguments $3,500 seems to me to be a reasonable figure.  The applicant has stated that he might have difficulty paying those costs but that is not a reason for me to refrain from making a costs order.  It may have an impact on what the Immigration Department does to pursue the applicant for those costs.  In addition, I am told that the applicant has not paid the setting down fee of $327 for the hearing of this matter.

13. I will order that the application is dismissed and that the applicant is to pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $3,500.  I will also order that the applicant is to pay the setting down fee of $327 for this matter within 14 days or is to obtain a waiver within that period.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  30 September 2003