SZMJM v Minister for Immigration

[2008] FMCA 1562

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMJM v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1562

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in Pakistan at the hands of Muslim extremists – applicant believed in part but Tribunal not satisfied that the applicant suffered persecution – Tribunal misrepresenting or misunderstanding the applicant’s oral and written evidence in its decision – jurisdictional error established – whether the Court should withhold relief in the exercise of discretion considered.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.424A

Applicant WAEE v Minister for Immigration [2003] FCAFC 184; (2003) 75 ALD 630
Htun v Minister for Immigration [2001] FCA 1802
Dranichnikov v Minister for Immigration (2003) 197 ALR 389
Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1, 78 ALJR 678
Minister for Immigration v Guo [1997] HCA 22
Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323
Muralidharan v Minister for Immigration NG 766 of 1995 FED No. 182/96
MZWBW v Minister for Immigration [2005] FCAFC 94
MZXGP v Minister for Immigration [2006] FCA 1314
Paul v Minister for Immigration (2001) 113 FCR 396
Rezaei v Minister for Immigration [2001] FCA 1294
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609

Applicant: SZMJM

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1489 of 2008

Judgment of: Driver FM

Hearing date: 19 November 2008

Delivered at: Sydney

Delivered on: 19 November 2008

REPRESENTATION

Counsel for the Applicant: Mr R Nair, pro bono publico

Solicitors for the Respondents: Mr G Johnson
DLA Phillips Fox

ORDERS

1. The name of the applicant is not to appear on the transcript of proceedings.

2. The Court notes the applicant’s undertaking to apply for a fee waiver by 21 November 2008.

3. A writ of certiorari shall issue quashing the decision of the Refugee Review Tribunal signed on 19 December 2007 and handed down on 8 January 2008.

4. A writ of mandamus shall issue, requiring the Refugee Review Tribunal to redetermine the application before it according to law.

5. The first respondent is to pay the applicant’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1489 of 2008

SZMJM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”).  The decision was handed down on 8 January 2008.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. 

2. The background to the applicant's claims and the Tribunal decision on them is conveniently summarised in the Minister's written submissions filed on 12 November 2008.  I adopt as background for the purposes of this judgment, with minor amendments, paragraphs 2 through to 11 of those written submissions:

   The applicant is a male citizen of Pakistan born on 25 December 1960.[1] He arrived in Australia on 28 June 2007.[2]

   [1] Court Book (“CB”) 5.

   [2] CB 18.

   The applicant applied for a Protection (Class XA) visa on 13 July 2007.[3] His claims were set out in a statement accompanying the application.[4] The application was refused on 9 October 2007.[5]

   [3] CB 5.

   [4] CB 30.

   [5] CB 64.

   The applicant applied to the Tribunal for review of the original decision on 26 October 2007.[6]

   [6] CB 81.

   The applicant gave oral evidence before the Tribunal on 23 November 2007. The Tribunal handed down its decisions on 8 January 2008.

   The applicant's claims

   The applicant claimed to fear persecution from the Tehreek-e-Nafaz-e-Shariet-e-Mohammadi (TNSM) for his failure to comply with Sharia law.

   The applicant made the following claims:

   (a)He breached Sharia laws in Pakistan by failing to have a beard, possessing a television and radio, educating his daughters and failing to have his sons schooled in madrassas. He also spoke out against Sharia law at a public forum.

   (b)On December 2006 he was issued with a warning on his mobile phone stating that he and his family would be killed if he spoke out against Islam. Later in December his television set was stolen and his satellite dish was destroyed. He reported the incidents to the police who were unable to do anything.

   (c)He was then identified by the TNSM as a 'moderate' and claimed that if he were to return to Pakistan he would be killed.

   The applicant attended a hearing before the Tribunal on 23 November 2007, at which he submitted his passport, a police clearance certificate and a first instance report lodged with the Pakistani police. The Tribunal took oral evidence from the applicant and asked him specific questions about his claimed breaches of Sharia law.

   The decision of the Tribunal

   The Tribunal found that the harm suffered by the applicant did not constitute persecution, as it was not satisfied that the attacks were motivated by his public opposition to Sharia, and instead considered them to be random acts of violence by a religious extremist group. In addition, the Tribunal found the applicant's account of the occasions he claimed to have spoken out to be unconvincing and lacking in detail.

   The Tribunal found that even if the applicant was considered to be a TNSM target in Pakistan, country information provided by the applicant indicated that the applicant could relocate to other parts of Pakistan where he would not be a target. This conclusion was supported by evidence that the applicant's family had successfully relocated to Karachi.

   The Tribunal found that the Pakistani Parliament had taken action against the TNSM and other similar extremist groups in the past and therefore the Tribunal could not be satisfied that the authorities would fail to provide the applicant with adequate protection in the future.

3. These proceedings began with a show cause application filed on 11 June 2008.  The applicant now relies on a further amended application filed in Court by leave today.  I incorporate in this judgment the ground and particulars in that further amended application:

   1. The Tribunal made a jurisdictional error in failing to [take] into account relevant evidence.

   Particulars

   i) The Tribunal said that “(B)y his (the applicant’s) own account no-one was hurt or threatened with harm during this incident (on 15 December [2006]).  The Tribunal has considered the police report of the incident but as it does not assist the applicant’s claim for protection, the Tribunal has given it no weight.  For the same reasons, the Tribunal also gives the other document relating to an incident involving a neighbour no weight”. (CB 188; see also CB 185)

   ii) The applicant informed police in Pakistan of the above incident and filed a “First Information Report (CB 171).  This report clearly states, “They (TNSM workers) give me life threat”

   iii) At the hearing before the Tribunal, the applicant told the Tribunal that if the applicant did “not avoid (his) daughters going to school, we will be killing you”.  Upon questioning by the Tribunal, the applicant reiterated this evidence.  (Pages 10 to 11 of transcript).

   iv) Following the hearing on 23 November 2007, the applicant provided the Tribunal with a police report (CB 173 to 175).  This report states that “they (TNSM) have also threatened our females to stop going to school and colleges or otherwise they will be killed”. The applicant wrote on the English translation of this report stating his brother and father had been “hijacked” and that the matter had been reported to the “Police station Kanjo Swat”.

   v) It is open to the Court to find that the Tribunal did not [consider] the evidence above.  This evidence was material to the determination by the Tribunal.

4. The ground and the particulars are generally consistent with a show cause order I made on 18 August 2008 pursuant to rule 44.12(1)(b) of the Federal Magistrates Court Rules 2001 (Cth) that the Minister show cause why relief should not be granted in relation to the issue of whether the Tribunal overlooked relevant material in the form of the documents appearing on pages 173 to 175 of the court book.

5. I received as evidence the court book filed on 22 July 2008.  I also marked as an exhibit[7] an Auscript transcript of the hearing conducted by the Tribunal on 23 November 2007.

   [7] exhibit A1

6. I incorporate in this judgment the relevant portions of the applicant's outline of submissions filed on 12 November 2008:

   The applicant contends that the Tribunal did not consider relevant evidence provided by him.

   Under the heading of “Findings and Reasons” the Tribunal said “(B)y (the applicant’s) own account no-one was hurt or threatened with harm during this incident (on 15 December 2007).  The Tribunal has considered the police report of the incident but as it does not assist the applicant’s claim for protection, the Tribunal has given it no weight.  For the same reasons, the Tribunal also gives the other document relating to an incident involving a neighbour no weight”.

   The police report referred to above (CB 171 to 172) clearly states, “They (TNSM workers) give me life threat”.

   In oral evidence before the Tribunal the applicant (see page 10 of the transcript) stated that persons involved in the 15 December 2006 incident had told him that if the applicant did “not avoid (his) daughters going to school, we will be killing you”.

   The Tribunal has not made any finding in regard to the authenticity of the police report referred to above.

   Following the hearing on 23 November 2007, the applicant provided the Tribunal with a further police report (CB 173 to 175).  This report states that “they (TNSM) have also threatened our females to stop going to school and colleges or otherwise they will be killed”.  The applicant wrote on the English translation of this report stating his brother and father had “hijacked” and that the matter had been reported to the “Police Station Kanjo Swat.  It is clear that this report was made to the police by a relative of the applicant and referred to persecution suffered by the applicant’s relatives and the future persecution feared and the reasons for the persecution.  Accordingly, the applicant contends that this was relevant evidence.

   The Tribunal said in regard to this further police report that “(F)or the same reasons, the Tribunal also gives the other document relating to an incident involving a neighbour no weight”.

   It is clear that the Tribunal proceeded gave no weight to this further police report because the Tribunal ignored the evidence of both the persecution and the very serious threats contained therein just as the Tribunal had ignored such evidence given by the applicant in his oral evidence and the first police report referred to above.  Further, the Tribunal ignored the evidence of the relationship between the applicant and the parties referred to in the further police report.  All this evidence was clearly material.  It cannot be said that the Tribunal would not have reached a different decision if the Tribunal had taken this evidence into account.

   In Minister for Immigration  & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 the High Court said at [82]:

   It is necessary, however, to understand what is meant by "jurisdictional error" under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia, if an administrative tribunal (like the Tribunal)

   "falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."

   "Jurisdictional error" can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law

7. The Minister's submissions were not wholly responsive to the applicant's submissions in writing because they crossed in the mail.  Nevertheless, the Minister's submissions set out in paragraphs 16 through to 21 are pertinent and I incorporate those paragraphs in this judgment:

   Failure to consider claims/documents

   The applicant's claim appears to be that by failing to make any reference to certain evidence submitted to it by the applicant, accepting for the moment that the [Tribunal] did so fail, the [Tribunal] made a jurisdictional error. It is conceded by the Minister that the [Tribunal] did not purport to make reference to the contents of the applicant's documents received by the [Tribunal] on 14 December 2007.

   It is well accepted that a failure by the [Tribunal] to consider a claim or component integer of an applicant's claims will usually constitute an error going to its jurisdiction.[8] However, a distinction has been drawn between a failure to consider a claim by an applicant, and the Tribunal not considering certain evidence that, had it been considered and accepted, might have impacted upon the Tribunal's consideration of a claim.[9]

   In the present case, the applicant's claim was that he would suffer a well-founded fear of persecution upon return to Pakistan from the TNSM. The applicant gave evidence of incidents he claimed had occurred, such as the theft of his property, which he said demonstrated the harm to which he would be subjected. The allegations contained in the further material presented to the [Tribunal] following the hearing, that the applicant's father and brother had been kidnapped by 'terrorists', did not purport to alter or modify the applicant's central claim. If accepted, the further allegations would only have served to strengthen the applicant's claims. There is no requirement in law that the [Tribunal] consider every piece of evidence submitted to it.[10] Nor is it an error of jurisdiction for the [Tribunal] not to have considered such evidence in support of a claim, in circumstances where the RRT dealt with the applicant's claims.[11]

   In the alternative, should the Court not accept the first respondent's principal argument, it is submitted that even if the [Tribunal] made a jurisdictional error as suggested by the applicant, the Court should exercise its discretion to refuse the applicant relief as the [Tribunal] made separate and independent findings on relocation and state protection.

   In SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609, the Court accepted that even if a breach of s 424A had occurred, the appellants there could not overcome the [Tribunal’s] finding that their claims lacked the relevant Convention nexus. Therefore, the matter was one that the [Tribunal] was bound to refuse. It followed that relief would be refused in the exercise of the Court’s discretion (at [29] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ).

Similarly here, even had the [Tribunal] arrived at the conclusion that the applicant had a well founded fear of persecution (and there is no basis to assume that had the [Tribunal] considered the additional evidence supplied by the applicant that it would have reached such a conclusion), it was bound to refuse the application because:

·    The applicant could reasonably relocate within Pakistan, a conclusion the Tribunal drew despite it not being necessary to do so.[12]

·    The [Tribunal] was not satisfied that the Pakistani authorities would fail to provide the applicant with a reasonable level of protection in that country.[13]

·    The [Tribunal] did not fall into jurisdictional error in its treatment of the applicant's additional evidence, and even if it did, the relief sought should not be granted in the Court's discretion, as the [Tribunal] was bound to refuse the application.

[8] Applicant WAEE v Minister for Immigration [2003] FCAFC 184; Htun v Minister for Immigration [2001] FCA 1802; Dranichnikov v Minister for Immigration (2003) 197 ALR 389

[9] Paul v Minister for Immigration (2001) 113 FCR 396 at [79]. See also MZWBW v Minister for Immigration [2005] FCAFC 94 and Rezaei v Minister for Immigration [2001] FCA 1294.

[10] Muralidharan v Minister for Immigration NG 766 of 1995 FED No. 182/96; Minister for Immigration  v Guo [1997] HCA 22; Paul v Minister for Immigration (2001) 113 FCR 396; Applicant WAEE v Minister for Immigration (2003) 75 ALD 630 at [46].

[11] See MZXGP v Minister for Immigration [2006] FCA 1314 at [13]-[15] per Middleton J.

[12] CB 188-189

[13] CB 189

1. The issues raised in this case concern documents in the Urdu language and English translations appearing at CB 170 and 171 and also at CB 173 to 175.  The issues also concern the evidence given by the applicant at the hearing conducted by the Tribunal.

2. The first document purports to be a police report relating to criminal acts by persons at the applicant's home in which they threatened his life and destroyed his television, CD player and satellite dish receiver.  The Tribunal was plainly aware of that document because it referred to it in its reasons under the heading “Information provided with a review application”[14]:

   The applicant provided the Tribunal with a copy of a police clearance certificate dated 25 July 2007 and an English translation of a police report dated 15 December 2006 about an incident that happened on the same day.  The report states that the applicant was watching television in his house with some friends when members of the TNSM entered the house and forcefully removed the TV, CD player and satellite dish.  The applicant also provided the Tribunal with a number of recent media reports which bear upon the situation prevailing in the NWFP, particularly the Swat valley.  The reports contain instances of the rising tide of religious fundamentalism in the region.  None of the reports refers to the applicant.

   [14] CB 185

3. The Tribunal referred to the document again in the first paragraph at CB 187:

   The applicant showed the Tribunal a copy of what he identified as a police report regarding the theft of his satellite dish and Television.  The Tribunal suggested that it may not accept the report as evidence of the facts contained therein if it could not verify the authenticity of the document.  Furthermore the theft of objects did not necessarily constitute serious harm as envisaged by the Convention.  The applicant also provided a copy of a document relating to an incident involving some other individual and not related to himself or members of his family.

1. The second document was provided to the Tribunal following the hearing.  That is established by a receipt stamp dated 14 December 2007 on the document at CB 175.  Although it is not clear, I infer that the Tribunal's reference in the paragraph quoted above from CB 187 to “a copy of a document relating to an incident involving some other individual and not related to himself or members of his family” is a reference to that document.  I base that inference on the fact that no other document has been produced that the Tribunal could have been referring to in that sentence.  It is apparent that the Tribunal was mistaken in thinking that the second document, which also purports on its face to be a police report, did not relate to members of the applicant's family.  It purports to relate to an incident involving the applicant's father and his brother.  I incorporate the text of the English translation of the document in this judgment[15]:

   [15] CB 174-175

   (TRANSLATION FROM URDU INTO ENGLISH)

   Police Station Kabal

   Police Post Kanjo Distt: Swat

   Date of Report: 9/12/07

   It is reported at 12:10PM by … son of … age 40/41 years, Caste Aibhoo Khel, Resident of Koza Bandai in the said station.  In the report it is said that we are bonafide residents of this village ie. Koza Bandai and living with dignity and honour.

   As we were against the banned organization of TNSM (Tehrike Nifaze Shariate Muhammadi) and never supported TNSM leader Fazlullal son of Bailadar resident of Mam Debrai and his group.  So in response the armed men of his group are after the killing of our family members.  As they have started campaign against the female education in the district.  But our females go to school but they don’t agree with this therefore they have also threatened our females to stop going to schools and colleges or otherwise they will be killed.

   These terrorists of Mr. Fazlullah sit in the school ground daily and provoke the innocent people against the govt and also stop the female from school.

   My father Mr. … and brother … tried to prohibit them which caused there [sic] terror further towards us.

   My father … and Brother … went out to see their property and other agricultural lands but never came back.  They are out of scene now.  We tried our best to search them out but in vain.  It seems that these terrorists have hijacked them.  Due to their threats and fear from them we have migrated to some other places and we have settled ourselves into a strange and far flung area from our own village.  We can not come back because of these terrorists.

   The soul, and property of my family is in danger.

   It should be reported in the police station.  I will report once again as I get any information about my father and brother.

   From Police Office: whatever has been stated in the above report, word by word that is correct and I have put my signature on that.  I confirm and affirm that after considering his report we will start our action.  And we will put his case under the legal action.  I have taken the report and informed the concerned.

   Mob: [phone]

   Dated: 9/12/2007

2. The question is whether the Tribunal overlooked relevant material and whether the Tribunal gave meaningful consideration to the applicant's claims.  The Tribunal was aware that the applicant feared death from the TNSN because of his asserted high profile stance against the policies and practices of the TNSN.  The Tribunal recognised in its reasons[16] that the applicant feared death from the TNSN because he had been identified by them as a moderate.

   [16] CB 188

3. In relation to the applicant's asserted past incidents of harm, the Tribunal said[17]:

   The applicant claims the TNSM who also want to kill him because he spoke out against them and has been identified as a moderate.  The Tribunal accepts that the TNSM is a particularly fanatical organisation that has been banned by the Pakistani Parliament for good reason.  However, the applicant’s account of the occasions when he claims to have spoken out against the TNSM’s policies were inconsistent, lacking in particularised detail and unconvincing and the Tribunal is not satisfied that he has been outspoken as claimed.  Furthermore, he claims that the home invasion and theft of his television and satellite were motivated by his public opposition to the TNSM.  However the Tribunal is not satisfied that he was not, rather, a random target of the TNSM’s policy of removing satellites and televisions.  By his own account no-one was hurt, or threatened with harm during this incident.  The Tribunal has considered the police report of the incident but as it does not assist the applicant’s claim for protection, the Tribunal has given it no weight.  For the same reason, the Tribunal also gives the other document relating to an incident involving a neighbour no weight.

   [17] CB 188

4. That paragraph is, unfortunately, not a model of clarity and in particular the Tribunal's statement that the Tribunal was “not satisfied that he was not, rather, a random target of the TNSN's policy of removing satellites and televisions” is not easy to interpret.  I proceed on the basis that the presiding member intended to say that, assuming the incident in fact occurred as alleged, the Tribunal was not satisfied that the motivation for the TNSN action was the applicant's political involvement but was rather a random act consistent with the TNSN's policy of removing unacceptable communication devices such as satellites and televisions.

5. A greater difficulty arises from the following sentence in which the Tribunal asserts that by the applicant's own account no one was hurt or threatened with harm during this incident.  I assume that the reference to the applicant's own account was not intended to be a reference to the police report itself which contains an assertion by the applicant that his life was threatened.  The transcript reveals that the applicant was questioned at the hearing about this incident.  I incorporate in this judgment the exchange that occurred from the transcript from the first line on page 10 of the transcript to line 24:

   THE INTERPRETER: Yes, there’s another house and there happen the same thing.  That’s because every Friday, they were collecting – seizing all these satellite dishes, CDs and they were burning it – and VCRs and burning it after the Jumaa Prayer, after the Friday prayer, and giving it to the volunteers to burn it, but they haven’t done it for that long.

   MS DUFFIELD:         Okay, so this was the first time this had happened to you?

   [THE APPLICANT]:       It was.

   MS DUFFIELD:         And, was anybody harmed?  Did they threaten to harm anybody?

   THE INTERPRETER:      No, only warning.  They just received the warning, that you’ve got to be careful of not doing these things any more.

   MS DUFFIELD:         Okay, so you got a warning, don’t do this anymore.  Did they say, and if you do do this, something bad will happen to you?

   THE INTERPRETER:      Yes, they will kill you.  They took the satellite dish antenna and also they burned the TV, and if you do not avoid your daughters going to school, we will be killing you.

6. I conclude from that exchange that in answer to the presiding member's inquiry the applicant initially indicated that there was no physical harm and that there was not a threat but a warning.  That rather begged the question of whether the warning was itself a threat.  The presiding member, understandably, pursued the issue by asking more explicitly whether there was any threat of future harm.  The interpreter responded, "Yes.  They will kill you."  I understand that to be not a statement of some generalised risk but a response to the presiding member's question of whether there was a threat of future harm.  It was, accordingly, a misrepresentation of the applicant's evidence to state, as the Tribunal did, that on the applicant's own account no one was threatened with harm in the incident. 

7. It was open to the Tribunal to conclude on the material before it that the motivation for the incident was not that asserted by the applicant.  However, the Tribunal's conclusion that the incident was not an incident of serious harm is unsafe because of the misrepresentation of the applicant's evidence. 

8. Even more difficulty arises from the second document.  The Tribunal was simply wrong in concluding that the document related to an incident involving a neighbour. The Tribunal was also wrong in its belief that the document did not relate to members of the applicant's family.  The document on its face asserted a serious incident involving his father and brother.  Properly understood the document placed a gloss on the applicant's claims.  This was an asserted new incident and properly supported an assertion that the applicant was at risk of harm from the TNSN as a member of his family which was being targeted by the TNSN because the family was sending children to school in defiance of the TNSN's extreme religious views. 

9. There was no consideration by the Tribunal of that claim which arose from the document.  The Tribunal misunderstood the significance of the document and accordingly gave it no weight. 

10. I find that the Tribunal did not complete its task of the consideration of the applicant's claims as articulated or as fairly arising from the material placed before the Tribunal.  I am satisfied that that error was a jurisdictional error.

11. The Minister asserts that relief should be withheld in the exercise of discretion.  The Minister places reliance upon the findings of the Tribunal relating to relocation and state protection[18]:  

    [18] CB 188-189

    Relocation

    The applicant claims that he cannot relocate to another part of Pakistan because the TNSM are widespread and would find him anywhere. Country information provided by the applicant suggests that TNSM’s area of influence does not extend much beyond the North West Frontier Provinces and by his own admission he spent several months in Karachi without any adverse attention from the TNSM and his brother has a business there.  Furthermore, as a seaman the applicant is outside the country for the majority of the year and it’s difficult to imagine why relocation would be inconvenient particularly as his children and other members of the family have already safely relocated and are being protected by a military contingent.  Despite his claims to the contrary, the Tribunal does not believe that it is unreasonable for the applicant to relocate to another part of the country despite the generalised instability of Pakistan at the moment.  Be that as it may, as the Tribunal has found that the applicant is not of any interest to the TNSM, it follows that the issue of relocation does not arise.

    State Protection/future harm

    The applicant claims that the State cannot protect him from the TNSM and if he returns to Pakistan he will be killed.  Country information provided by the applicant indicates that the Pakistani Parliament banned TNSM in 2002 and arrested it’s founder and leader thus indicating a willingness of the state to provide the necessary protection.  The Tribunal acknowledges that Pakistan is a country where great violence and terror has occurred and there is undoubtedly persecution; it is not implausible that the applicant could become a victim of random acts of violence, however this would, arguably, make him a victim of civil disorder and not necessarily a refugee from persecution.  Furthermore, it is not a requirement that the state concerned guarantee the safety of its citizens from harm caused by non-state persons.  In MIMA v Respondents S152/2003 Gleeson CJ, Hayne and Heydon JJ observed that “no country can guarantee that its citizens will at all times and in all circumstances, be safe from violence”.  Justice Kirby similarly stated that the Convention does not require or imply the elimination by the state of all risks of harm; rather it “posits a reasonable level of protection, not a perfect one”.  In the country information provided by the applicant, it is clear that the Pakistani government has taken action against TSNM and other extremist groups.  The Tribunal cannot be satisfied that the authorities would fail to provide the applicant with a reasonable level of protection should he return to Pakistan.

    Having considered the claims and issues individually and cumulatively, and based on the evidence currently before it, the Tribunal is not satisfied that the applicant faced persecution in the past or that he faces a real chance of being persecuted now or in the reasonably foreseeable future if he returns to Pakistan in relation to his race, nationality, religion, his political opinion or membership of a particular social group, or to an alleged, or imputed, race, nationality, religion, political opinion or membership of a particular social group.  The Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution for a Convention related, or any other reason.

12. I do not accept that those findings provide an independent basis to sustain the Tribunal decision.  First, the discussion in relation to relocation is made in advance of a necessary forward looking assessment of whether the applicant faced a real risk of harm in the future should he return to Pakistan.  That assessment, to the extent that it relates to the TNSN, is limited to the final sentence in the paragraph relating to relocation and led simply to a conclusion that the issue of relocation did not arise. 

13. Secondly, in considering relocation it was necessary not only to consider the practicality of relocation but the effectiveness of state protection should relocation occur.  The Tribunal appears to have been satisfied that the applicant could obtain protection against the TNSN through relocation.  However, the Tribunal also recognised that state protection might not be available in Pakistan against other serious risks of harm given that Pakistan is a country where there is great violence and terror and undoubted persecution. 

14. In relation to the issue of effective state protection against future harm, the Tribunal noted that the risk of that harm did not necessarily give the applicant the status of a refugee.  That was an equivocal statement.   However, notwithstanding that reasoning, the Tribunal was willing to conclude, in the final template paragraph quoted above, that there was not a real chance that the applicant might suffer serious harm for a Convention reason should he return to Pakistan. 

15. The Tribunal concluded it could not be satisfied that the authorities would fail to provide the applicant with a reasonable level of protection should he return to Pakistan.  The Tribunal did not find that effective protection would be available.  That is suggestive of a degree of doubt.

16. For those reasons I find that the applicant should not be deprived of relief and I will order that the applicant receive relief in the form of the Constitutional writs of certiorari and mandamus.

17. Costs should follow the event in this case.  The Court scale prescribes costs after a final hearing in the migration jurisdiction in the sum of $5,000.  Mr Nair sought costs marginally in excess of that amount but I am not minded to depart from the Court scale.  The solicitor for the Minister did not wish to be heard on costs.  I will order that the first respondent is to pay the applicant’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  24 November 2008