VPAD v Minister for Immigration
[2003] FMCA 513
•14 November 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VPAD v MINISTER FOR IMMIGRATION | [2003] FMCA 513 |
| MIGRATION – Application for review of Refugee Review Tribunal decision – whether failure to accord natural justice and jurisdictional error as a result of failure to consider persecution for membership of a particular social group – no jurisdictional error. |
Judiciary Act 1903 (Cth)
Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389
Thevendram v Minister for Immigration and Multicultural Affairs (2000)
182 ALR 290
Selvadurai v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, 20 May 1994)
| Applicant: | VPAD |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ722 of 2003 |
| Delivered on: | 14 November 2003 |
| Delivered at: | Melbourne |
| Hearing date: | 12 November 2003 |
| Judgment of: | Hartnett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Harding |
| Counsel for the Respondent: | Ms Moore |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDER
That the application is dismissed.
That the applicant pay the respondent's costs as agreed and failing agreement as determined by the Court upon application made to it.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ722 of 2003
| VPAD |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Background
The applicant in these proceedings was represented by pro bono counsel. The Court is grateful to counsel for acting in that capacity.
This is an application under s.39B of the Judiciary Act 1903 (Cth) in relation to a decision of the Refugee Review Tribunal (the Tribunal) made on 17 April 2003 and handed down on 22 April 2003 affirming a decision of the delegate of the respondent to refuse to grant a protection visa to the applicant.
The applicant, who is a citizen of Pakistan, arrived in Australia in or about October 2001. He claims to be of Pashtun ethnicity and Sunni Muslim religion. He claims to have left Pakistan in September 2001 on a valid passport but with no visa to enter Australia.
Following his arrival in Australia the applicant resided in country Victoria until police picked him up when they pulled over a van in which he was travelling. He has been in immigration detention since January 2003.
On 23 January 2003 the applicant lodged an application with the Department of Immigration and Multicultural and Indigenous Affairs (the Department) for a protection visa. That application was accompanied by a statutory declaration affirmed by the applicant as well as a letter from his then legal representatives containing legal submissions.
In his application for a protection visa form 866B the applicant claimed that when he came to Australia he had his passport and Pakistani identity card. He claims to have stayed in a caravan park and lost his papers there and that subsequently he could not find them.
On 28 January 2003 a delegate of the respondent refused to grant the applicant a protection visa and on 29 January 2003 the applicant applied to the Refugee Review Tribunal for review of the delegate's decision.
On 26 February 2003 the applicant's solicitor lodged with the Tribunal a faxed affidavit from Peshawar, Pakistan dated 29 January 2003 to support his application. The deponent was a Mr B.
A hearing of the Tribunal was held on 6 March 2003. The applicant attended and was assisted by a legal adviser and a Pashtun interpreter. He gave oral evidence. On 11 March 2003 the applicant's solicitor filed further written legal submissions with the Tribunal.
On 4 April 2003 the applicant's legal representatives faxed to the Tribunal an affidavit together with English translation which had been faxed from Peshawar, Pakistan on 12 March 2003. The deponent was a Mr K.
On 17 April 2003 the Tribunal decided to affirm the decision of the delegate not to grant the protection visa.
On 20 May 2003 the applicant filed an application to review the Tribunal's decision with the Federal Court of Australia. The matter was transferred to this Court by Marshall J on 26 June 2003.
The Tribunal hearing
The Tribunal determined there was not a real chance that the applicant would face persecution for any Convention reason were he to return to Pakistan now or in the reasonably foreseeable future and that therefore the applicant did not satisfy the criterion for a protection visa.
In written legal submissions filed on the applicant's behalf before the hearing it was submitted that the applicant's claims were based on persecution for reason of his membership of a particular social group, namely "Heirs". There was no claim articulated that the applicant was claiming to be persecuted for reason of his race or nationality or for being a member of a particular social group of "Pashtuns Accused of a Crime". In the legal submissions lodged after the Tribunal hearing the applicant's solicitor claimed that the applicant belonged to either or both of two social groups, namely "Victim of a Blood Feud" or "Person Forced Before a Pakistani Tribal Council".
The post hearing submissions also claimed that the applicant faced persecution for reason of his ethnicity. Those submissions claimed that his Pashtun ethnicity exposed the applicant to adverse discriminatory treatment from authorities. It was said that:
this will be expounded further below
The claim of persecution for reason of ethnicity or race was not
expounded further
in the submissions. The submissions were accompanied by several internet articles about Pakistan. None of those articles referred to the discrimination or persecution of Pashtuns or Pashtuns accused of a crime being a particular social group. Apart from the brief reference in the post hearing submissions to a claim of persecution for reason of race or ethnicity, this claim was not otherwise articulated by the applicant before the Tribunal. Importantly, at no stage before the Tribunal was there articulated a submission that the applicant fell within the particular social group of "Pashtuns Accused of a Crime". It is this claim which the applicant now says the Tribunal failed to consider.
The applicant's claims in his statutory declaration which was before the Tribunal were concisely summarised by counsel for the respondent (as was his oral evidence to the Tribunal which follows) and are as follows:
a)his father (who is the only son in his family and had three cousins, all brothers, who also had sons) had disappeared when the applicant was young and the applicant and his mother never knew what had happened to his father and his body had never been found;
b)his father's cousins (whom he referred to as his "uncles") had enmity with his father and wanted his land and properties;
c)he accused his uncles of killing his father to get the property, land and shops owned by his father;
d)he had gone to the police about his father but there were no witnesses and the police did nothing;
e)he asked his uncles to help him find his father and they would say they couldn’t do anything and that maybe his father had done something wrong;
f)he and his mother found out that his uncles were trying to kill the applicant;
g)his uncles took the family's land but could not take the shops. They had initially said they would help him and his mother by becoming tenants on the land but then said to the applicant's grandparents the land belonged to them and they kept all crops grown on the land;
h)the uncles told him to do something if he could;
i)his mother's brother helped take the uncles to Court but even though the Court ordered the land be returned to the applicant, he uncles tried to kill him and did not return the land;
j)he was removed from school when he was 13 years old and his maternal uncle kept him hidden for about ten years and he would be moved around so they could not find him;
k)his uncles killed their own sister's fiancé and said that the applicant had done it; went to the police with false witnesses and the police got a warrant from Court for his arrest;
l)his life was in danger from the police, his uncles and from the fiancé’s family;
m)his maternal uncle tried to talk to the authorities and tell them that the applicant was innocent but the others had witnesses and statements that were false;
n)he had been in hiding for fear of his life for over ten years and his uncles were desperate to kill him so that they could get his property legally;
o)he had no choice but to flee from Pakistan and had found a smuggler but did not know that he would end up in Australia and did not go to the Australian authorities when he came to Australia because he was afraid;
p)when he arrived in Australia he was put in a taxi which took him to a Turkish mosque where he was told that someone would meet him but there was no-one there; and
q)even if he went to another part of Pakistan he was afraid that the police would arrest him.
The affidavit of Mr B claimed that he was a co-villager of the applicant; that the applicant had a blood feud enmity with his cousins over property in Peshawar; that the cousins had already murdered because the applicant's family were in the minority in the village and the cousins' family in the majority; and that the cousins had forcefully taken the applicant's share of land and that in case of his return to Pakistan the applicant's life was in danger from his cousins.
The affidavit of Mr K stated that the applicant was his "real nephew"; that the applicant belonged to "Pathans Nation of NWFP"; that the Government of Pakistan was occupied by Punjabis and that if Pathans protest for their rights, the Government of Pakistan/Punjabis do not give rights to Pathans. The affidavit claimed that if the applicant came to Pakistan there would be –
danger for his life because there was no protection in Pakistan.
The applicant's oral evidence to the Tribunal was in essence as follows:
a)he was born in Upper Tacal and had attended the Upper Tacal Primary School until he was 13 or 14 years old when his father died;
b)when his father died his mother was scared that something might happen to the applicant on his way to school so they moved to live with his maternal uncles and he started making furniture with those uncles; etc
c)he lived with his maternal uncles from the time he was 13 years old until he left Karachi to come to Australia;
d)he went to Karachi for 21 days and a smuggler visited him twice at his hotel. His friend gave the smuggler 170,000 rupees. The smuggler took him to a ship and told him to stay with the crew members;
e)he arrived in Australia by the ship and arrived in Sydney 15 months prior to the Tribunal hearing;
f)he once had a passport in his own name but had lost it two months after his arrival in Australia;
g)he left Pakistan because he had a problem and that if he goes back to Pakistan the government will gaol him;
h)he had been accused of a killing and if he returns people will report him to the government and the government will take him away. That accusation derived from his uncles killing their sister's fiancé and telling the police that the applicant had committed the murder. The applicant claimed his cousins had bribed three people to say that they had seen the applicant commit the murder;
i)the military government had no mercy and if accused of murder they would prosecute and hang him;
j)the military government is very hard on Pathans and if they commit the smallest crime they are never forgiven;
k)his uncles were motivated by a desire to gain possession of land inherited by the applicant and his mother from his father;
l)his uncles had long coveted the land and the applicant believed that they had killed his father for this reason. His uncles thought that if they could get the government to arrest him they could take over the whole of his property;
m)the killing of the son-in-law had taken place where he was living in Tacal and he had to subsequently hide in different places in the area around the place where he was living for approximately one year before his departure for Australia;
n)after the murder the police came looking for him. When they did so he would hide at the homes of his maternal cousins' friends or his cousins' relatives for a night or two before returning to the house of his maternal uncle;
o)he fears the military government because where he comes from they deal with them harshly and will not let them go easily;
p)the military government was very tough on his people and so long as there were three witnesses there was not a proper hearing despite Pakistan having a Court system with solicitors and barristers.
Tribunal findings
The Tribunal made the following factual findings:
a)it accepted that the applicant was removed from the Tacal Bala School at the age of 13 or 14 years and then learnt the trade of carpentry but that that was not uncommon in Pakistan;
b)it accepted that his mother, a widow with a young child, would prefer to live with her family members, her brothers, who lived a short distance away from her husband's property interests of land and shops from which she was able to receive an income;
c)it did not accept that the applicant was hiding from the Pakistani police approximately four kilometres away from where a murder had allegedly occurred and that he remained in his maternal uncle's home, the same home in which he had lived since he was 13 or 14 years old without being detected by police;
d)it did not accept that if the applicant were wanted for murder as he alleged that the police would not make inquiries in the close area in which the other relatives lived and with whom he went to stay for a day at a time returning home once the police were allegedly no longer looking for him on each occasion;
e)it did not accept that the applicant was in hiding at all nor that he was in hiding from the time that he was 13 or 14 years old or that he was in hiding for the 21 months after the murder and up to the time he left Pakistan. It described this claim as implausible and unconvincing;
f)the applicant's claim that his uncles were trying to kill him was vague and lacking in detail;
g)the applicant's claim that his paternal uncles killed his father because he was the owner of land was vague and lacking in detail;
h)it did not accept that the paternal uncles killed the applicant's father because he was the owner of the land in question or that those relatives had attempted or wish to kill the applicant who is his father's heir and the owner of the land;
i)it did not accept that the applicant's uncles had taken any of his property;
j)it found a lack of credibility in the applicant's claim that he remained at the same address and moved out for a short time only to stay temporarily with other relatives nearby;
k)it did not accept that the applicant's explanation as to how he allegedly avoided arrest by police;
l)it did not accept that the police were looking for him in order to execute an arrest warrant;
m)it did not accept that the applicant's location would be unknown to the paternal uncles or that he was in hiding from his paternal uncles;
n)it did not accept that there were false charges against the applicant or that he was still the subject of false charges;
o)the applicant's delay in lodging a protection visa application indicated that the applicant at the time of arrival did not have a strong fear for his personal safety or future well being if he was to return to Pakistan.
The Tribunal considered the two affidavits lodged by the applicant and found the affidavit of Mr B to be not genuine, unreliable, vague and lacking in detail. The Tribunal provided reasons as to how it came to this conclusion in some detail. The Tribunal placed no weight on the affidavit of Mr K. It found it was vague, lacking in detail, expressed in general terms and that nothing in it suggested that the applicant's circumstances as claimed by him were known to the deponent. In reaching that conclusion the Tribunal considered that the affidavit did not state any reason why the applicant's life was in danger in Pakistan; did not state what rights were not given to Pathans by the Government and did not refer to the applicant by his claimed name.
The Tribunal considered the post hearing legal submission that the applicant's persecution was for reason of his membership of a particular social group namely "Victim of a Blood Feud" or "Person Forced Before a Pakistani Tribal Council". The Tribunal found there was no evidence to support either claim and that the applicant could not fall within either of the claimed social groups.
The Tribunal considered the applicant's claim that he was persecuted for reason of his membership of a particular social group namely “Heirs”. It found that on the evidence it was not satisfied that “Heirs” constituted a group that is recognised as being set apart from the rest of the community and that in any event, the harm which the applicant claimed had been directed against him was not for reason of the fact that he was an “heir” but rather that he held land which his relatives wished to get hold of.
Although no specific submission was made by the applicant the Tribunal considered whether or not the applicant might be a member of a particular social group - namely his family and found that there was no evidence that the applicant's father was targeted for any Convention reason and that by virtue of s.91S of the Migration Act 1958 (Cth) the applicant could not be regarded as a person who had a well-founded fear of being persecuted for the reason of membership of a particular social group that consisted of his family.
The Tribunal noted that in the post hearing submissions was a new claim as to the applicant's Pashtun ethnicity. The Tribunal noted that there was no evidence or Country Information provided by the applicant that the Pakistani Government discriminated against those of Pashtun ethnicity. It found that the evidence of the applicant had in fact been contrary to the claim put by his adviser in the submissions. The Tribunal concluded that there was no Convention nexus in relation to the applicant's claims.
The Tribunal found that if in the future the applicant's relatives were to attempt to take over any of his land or if false charges were ever laid against him then he might avail himself of State protection.
Consideration
The applicant contends that the Tribunal failed to consider his claim that he feared imprisonment or other serious harm should he be repatriated to Pakistan because he is ethnically Pashtun and has been accused of a crime. It is said by the applicant that such failure is a failure to accord natural justice and constructive jurisdictional error and that the evidence could have supported a finding that the applicant had a well - founded fear of persecution for reason of his race or ethnicity and/or membership of a particular social group, namely "Pashtuns Accused of a Crime".
On a fair reading of the Tribunal's decision, it considered and rejected any claim that the applicant was being persecuted for reason of his ethnicity or race. This was entirely a finding of fact to be determined by the Tribunal and cannot be subject to judicial review by this Court. The Tribunal said:
The complainant in this case is a Pakistan citizen of Pashtun ethnicity.
There is nothing to indicate that the claimant's fears of mistreatment, or the motivations of those he claims to fear, have any connection to the applicant's race or nationality. I find that their [sic] fears of mistreatment cannot be categorised as being "for reason of" any of those Convention grounds.
And further:
The post hearing submission of the agent stated that the applicant is of Pashtun ethnicity and it was claimed that this exposes the applicant to adverse discriminatory treatment from the authorities. This is a new claim and no evidence or country information was provided that the government discriminates against those of Pashtun ethnicity. There is nothing in the country information available to the Tribunal to support such a claim. There is nothing to support this claim in the country information lodged by the applicant's adviser post hearing … it was stated that this claim of discriminatory treatment would be expanded upon further below (in the agent's submissions) but it is not clear to the Tribunal that this has occurred, unless in the reference to Tribal Councils which has been commented on above. The submissions of the agent attempted to make a link between the applicant's ethnicity and the state's failure to apply due legal process with respect to the charges made against the applicant. The Tribunal finds that there is no evidence of discrimination against Pashtuns. It has not been able to find any evidence of such alleged discrimination from available country information. The Tribunal finds that there is no Convention nexus in relation to these claims contrary to the claim of the agent.
The Tribunal considered the applicant's evidence in relation to his concerns about the military government and the treatment he might receive from it as a Pashtun as well as the country information and legal submissions. It concluded there was no evidence or country information that the government discriminates against Pashtuns as described above. This is a finding of fact. There has been no failure to accord natural justice or constructive jurisdictional error as alleged by the applicant.
The Tribunal made findings based on the submissions put by the applicant. With respect to the social group "Victim of Blood Feud" it did not accept that the applicant's paternal uncles had attempted or wished to kill the applicant who was his father's heir and the owner of land. As to the applicant being a member of the social group being a "Person Forced Before a Pakistani Tribal Council" it concluded that the claim appeared to be based on surmise only and that there was no evidence that the applicant would be forced before a tribal council.
I have already previously referred to the Tribunal's consideration of the applicant's claim that he was a member of the particular social group of "Heirs" and also whether he could fall within another defined social group - membership of his father's family. The Tribunal said the following as to the two social groups claimed by the applicant's representatives and as referred to at the commencement of this paragraph:
The Tribunal has doubts as to whether these constitute particular social groups, but it is unnecessary to make a finding in this regard because the Tribunal does not in any event accept that the applicant would fall within either of these groups as the Tribunal has explained above.
The Tribunal finds that there is no evidence to support these two new claims that the applicant is the victim of a blood feud and would be forced before a tribal council.
In relation to the claim now made by the applicant that the Tribunal erred in not considering whether the applicant had a well-founded fear of persecution for reason of his membership of a particular social group – "Pashtuns Accused of a Crime" – the applicant relies on Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389. However in that case the High Court placed significant emphasis on the need for a case upon established facts to be articulated before the decision-maker. Gummow and Callinan JJ held (at 24):
To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice. (Emphasis added).
and Hayne J (at 95):
I agree that … the Refugee Review Tribunal failed to exercise its jurisdiction, and did not give the applicant natural justice in conducting its review, because it did not consider the claim which the applicant was then making, and had earlier made, for protection.
and further, Kirby J (at 78):
The Tribunal acts in a generally inquisitorial way. This does not mean that a party before it can simply present the facts and leave it to the Tribunal to search out, and find, any available basis for which theoretically the Act provides relief. This Court has rejected that approach to the Tribunal's duties. The function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances.
In this matter there was never a substantial and clearly articulated argument put before the Tribunal in relation to the applicant's ethnicity (which the Tribunal considered) and/or particular social group of “Pashtuns Accused of a Crime”. In particular, the latter claim was not made.
The Tribunal findings were based on probative evidence and did comply with s.430(1)(d) of the Act. It referred to the evidence or any other material on which its findings of fact were based. It couched in strong terms significant adverse findings against the applicant. On a fair reading of the Tribunal's decision, it has explained why it has reached a conclusion adverse to the applicant which complies with s.403(1)(d) (see Thevendram v Minister for Immigration and Multicultural Affairs (2000) 182 ALR 290).
Finally and contrary to submissions made on behalf of the applicant, the Tribunal considered the delay by the applicant in lodging his protection visa application in a way that was appropriate. It was a legitimate factual matter and an obvious one to take into account in assessing the genuineness or at least the depth of the applicant's alleged fear of persecution (see Heerey J in Selvadurai v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, 20 May 1994). It was just one of the many factual matters which the Tribunal had before it and considered. I find there to be no jurisdictional error in the Tribunal's careful and thorough decision. Accordingly, I dismiss the application and as the applicant has been wholly unsuccessful, the applicant should pay the costs of the respondent.
I Tracey Jones certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Associate: T. Jones
Date: 14 November 2003
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