CATCHWORDS IMMIGRATION - Refugee status - Well-founded fear of persecution in part of country of origin - Relocation - Reasonableness of proposed relocation Migration Act 1958 ss430, 476(1)(e), (g), (4) Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437 Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1986) 13 FCR 511 Western Television Ltd v Australian Broadcasting Tribunal (1986) 12 FCR 414 Malik v Minister for Immigration and Ethnic Affairs (unreported, 4 April 1997) Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 136 ALR 84 Minister for Immigration and Ethnic Affairs v Wu (1996) 185 CLR 259 MAQSOOD AHMAD v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS VG 424 of 1996 COURT: Sundberg J PLACE: Melbourne DATE: 20 May 1997 IN THE FEDERAL COURT OF AUSTRALIA ) VICTORIA DISTRICT REGISTRY ) No VG 424 of 1996 GENERAL DIVISION ) BETWEEN: MAQSOOD AHMAD Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent COURT: Sundberg J DATE: 20 May 1997 PLACE: Melbourne MINUTES OF ORDER The Court orders that: 1. The application be dismissed. 2. The applicant pay the respondent's taxed costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) VICTORIA DISTRICT REGISTRY ) No VG 424 of 1996 GENERAL DIVISION ) BETWEEN: MAQSOOD AHMAD Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent COURT: Sundberg J DATE: 20 May 1997 PLACE: Melbourne REASONS FOR JUDGMENT SUNDBERG J: Background The applicant is a Pakistani national. He is 48 years old and is married with five children. He arrived in Australia in September 1995 on a visitor's visa. In October 1995 he lodged an application for a protection visa with the Department of Immigration and Ethnic Affairs. The application was refused in November 1995. An application for review by the Refugee Review Tribunal was dismissed on 13 June 1996. The applicant seeks to review the Tribunal's decision in this Court. Evidence before Tribunal The applicant's parents came to Pakistan from India in 1947, when Pakistan was created. The applicant was born two years later in Faisalabad, which is in northern Pakistan, not far from Lahore. He completed primary and secondary education in Faisalabad. On completion of his studies in 1964 he worked on the family farm and ran a successful business buying and selling cattle. In 1977 he left Faisalabad for Karachi, which is in the south of the country on the coast. There he established a business manufacturing towels. The business prospered, and employed up to 30 workers. The business supplied towels throughout Pakistan. The applicant met Altaf Hussein, the leader of an organisation known as the Muhajir Qaumi Movement ("the MQM"). "Muhajir" is the name given in Pakistan to a refugee from India. The applicant said he accepted Hussein's invitation to be president of the Drig Road Junction branch of the MQM. He said he issued membership of the MQM to hundreds of people in the area, canvassed its manifesto to Muhajirs, gave it money, and paid for people to travel to meetings addressed by Hussein. Muhajirs began to be victimised by the indigenous people of Sindh province, where Karachi is located. The government of Sindh consists mainly of Sindhies. The applicant said that though he did not take part in election campaigns, he had a high level of involvement in the MQM's activities. However he was unable to provide any details of the MQM party structure. The applicant said that as a result of attacks on MQM members he thought his life was in danger. A warrant for his arrest was issued in 1993. For those reasons he left Pakistan in 1994 and went to London. He stayed there for three months. He then returned to Pakistan, having heard that the state of law and order had improved. He said he did not like London, and returned to Pakistan in order to see his children and check on his business. Later he travelled to Brunei and Malaysia on business. When he returned to Pakistan, the situation had deteriorated. MQM members and the whole Muhajir community were facing discrimination and maltreatment. The applicant received threats, and his branch office was set on fire. His house was raided by the police, though he was not caught. He decided to leave Pakistan for Australia. The applicant said his family was still in Faisalabad. He claimed that one of his children had been taken away by the authorities in July 1995. He believed he would be arrested if he were to return to Pakistan. Tribunal's reasoning The Tribunal set out the definition of "refugee" in the Convention relating to the Status of Refugees, quoted passages from Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 espousing the "real chance" of persecution test and explaining the meaning of "persecution", and noted that whether a person is a refugee is to be determined upon the facts existing at the time of the determination. The Tribunal observed that in completing his application for a protection visa the applicant provided no details of his claims for refugee status. When he later provided information his claim of fear of persecution stemmed essentially from his association with the MQM. At the hearing he was unable to provide any details of the structure of the MQM to support his claim that he had held a significant organisational role within it. He "gave vague evidence about the party work in which he claimed to have been involved". Having seen and heard the applicant, the Tribunal was not satisfied that he had any association of significance with the MQM, and found accordingly. The Tribunal observed that the applicant had voluntarily returned to Pakistan after his time in London notwithstanding his claim that a warrant for his arrest had been issued. His return at a time when, according to him, the police were searching for MQM organisers underscored, in the Tribunal's view, that he did not occupy a role of any significance in the MQM. The Tribunal thought it implausible that the applicant would return to Pakistan without applying for refugee status in London if in fact he had a fear of arrest in Pakistan, either due to his MQM association or the issue of the arrest warrant. The Tribunal also thought it implausible, if an arrest warrant had in fact been issued, that the applicant would have been able, on his own passport, to leave Pakistan for London, re-enter Pakistan, leave Pakistan for Brunei and Malaysia, return to Pakistan and again leave legally, without ever having been detected by the authorities. The Tribunal did not believe the applicant's claim that his son had been taken away in July 1995. It noted that he had passed up several earlier opportunities to make such a claim. It thought it far-fetched that the son would be apprehended due to the applicant's activities, some two years after the issue of the warrant for the applicant's arrest. The Tribunal was clearly unimpressed with the applicant as a witness, but said that despite his lack of credibility concerning the arrest warrant and the role he claimed to have had in the MQM, it would nevertheless consider the risk to supporters of the MQM in Pakistan. In this connection the Tribunal had resort to a number of publications dealing with the influx of Muhajirs into Karachi "to the virtual exclusion of other areas", the establishment of the MQM, rallies and riots in Karachi involving the MQM, and the incapacity or unwillingness of government forces to contain the violence and protect those at risk. So far as appears from the publications, the disturbances were for the most part in Karachi, though at times they extended to other major towns in Sindh province with large Muhajir populations, such as Hyderabad and Sukkur. The former is in the south and the latter in the north of the province. The Tribunal said the material available to it about the situation in Pakistan demonstrates a protracted and occasionally violent struggle between Muhajirs and rival ethnic groups to which both sides have unnecessarily contributed. In recent times a resurgence of that violence has caused chaos in Karachi. The State has been either unable or unwilling to quell the ethnically based violence there. A disturbingly large number of Muhajirs and others have been killed or otherwise harmed. There are credible reports of torture of many persons with a perceived association with the MQM; of official collusion in splitting the MQM; and of State involvement in acts of terrorism. While it rejected the applicant's claim that he was an MQM activist, it accepted that he supported the MQM, and that there was a real prospect that he might be persecuted in Karachi even as a mere supporter. The Tribunal then observed that it was required to assess the risk to the applicant in Pakistan as a whole rather than just in Karachi. It said: It is apparent that there continues to be a risk of harm of, in particular, prominent MQM workers in Karachi. The situation elsewhere in Pakistan is considerably more settled and previous concerns that violence directed at MQM workers in Karachi may become rife in other major centres has not been borne out. Material provided by the applicant's adviser confirms that there continues to be a prospect of harm to MQM workers in Karachi. There is no material before the Tribunal that would indicate, however, there is a real prospect of harm to the applicant in Faisalabad, where he has previously resided, or in other parts of Pakistan where he may reasonably be expected to relocate. The Tribunal concluded that there was not a real chance that the applicant would face persecution for any reason if he were now returned to his country of origin. Grounds of review (a) onus The applicant pursued only three of the grounds pleaded. The first was that the Tribunal made an error of law by imposing an onus on the applicant to prove a real prospect of harm outside Karachi. Reference was made to the observations of Beaumont J in Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437 at 451-452, that a contracting State should not place on an applicant a burden of proof with which he could not possibly cope, and that in some cases it might be necessary to give an applicant the benefit of the doubt. I do not consider that the Tribunal imposed on the applicant an onus he could not possibly cope with. It simply said there was no material before it which disclosed that there was a real prospect of harm to him in Faisalabad. What amounts to an inappropriate imposition of a burden of proof depends on the circumstances of a particular applicant. In the present case the applicant was a successful businessman, capable of arranging and funding travel to London, Malaysia and Brunei. He and his advisers assembled material which he placed before the Tribunal showing turmoil in Karachi and other places in Sindh province. If there had been anti-Muhajir and anti-MQM activity in the north of Pakistan (where the capital Islamabad and another major city, Lahore, are located), it would presumably have featured in the newspapers circulating there. The applicant could have obtained that material and put it before the Tribunal. Nothing was produced, and nothing appeared from the considerable volume of "country information" available to the Tribunal, to suggest relevant turmoil in the north and in particular in and around Faisalabad. (b) procedures required to be observed It was submitted that the Tribunal had failed to observe procedures required by the Act to be observed in connection with the making of the decision: s476(1)(a). It was said that the Tribunal had failed to comply with s430(1) which provides: Where the Tribunal makes a decision on a review, the Tribunal must prepare a written statement that: (a) sets out the decision of the Tribunal on the review; and (b) sets out the reasons for the decision; and (c) sets out the findings on any material questions of fact; and (d) refers to the evidence or any other material on which the findings of fact were based. It was said that the Tribunal had failed to comply with par (d), in that the evidence supporting the finding that there was no real prospect of harm to the applicant in Faisalabad, or in other parts of Pakistan where he may reasonably be expected to relocate, was not referred to in the reasons for decision. Section 476(1)(a) speaks of procedures required to be observed "in connection with the making of the decision". Examples of procedures that clearly fall within these words are the requirement in s425(1)(a) that the Tribunal give the applicant an opportunity to appear before it to give evidence, and in s429 that the hearing of an application by the Tribunal be in private. Those provisions deal with procedures leading up to the making of the decision. Section 430 deals with steps the Tribunal must take after it makes a decision, and there is a question whether, even allowing for the width of the words "in connection with", those steps are requirements to be observed in connection with the making of the decision. I will, however, assume that they are. In Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 136 ALR 84 Sackville J, with whom Davies and Beazley JJ agreed, speaking of s166E(1) (the predecessor of s430), said: Care should be taken not to elevate the requirements of s166E ... into an occasion for a minute examination of reasons "with an eye keenly attuned to the perception of error" .... ... Legislation such as s166E ... does not require the Tribunal to prepare lengthy reasons dealing with every aspect of the evidence. What is required is that the Tribunal set out in "short and measured, but specific terms its findings in connection with" matters relevant to its decision .... The standard required is not one of perfection and regard must be had to the composition of the Tribunal, which does not necessarily include trained lawyers .... The Tribunal's reasons must be read as a whole, and individual sentences must not be closely examined in the hope of finding infelicity or error. See Minister for Immigration and Ethnic Affairs v Wu (1996) 185 CLR 259 at 291-292 per Kirby J. The Tribunal could have assembled on the concluding page of its determination the evidence and material which supported its relocation finding and which appeared in earlier parts of its decision. A great deal of country information had been set out describing the situation in Karachi and elsewhere in Sindh province. That material makes no reference to provinces other than Sindh. In particular it does not mention difficulties in the areas most remote from Sindh, namely the north of the country where Faisalabad, Islamabad and Lahore are located. Further, the Tribunal noted that the applicant had been born in Faisalabad, and that his family still lived there. The Tribunal disbelieved the applicant's claim that one of his children had been taken away, presumably from Faisalabad. In announcing its relocation conclusion the Tribunal did not repeat these items of evidence. Instead it spoke in more general terms, saying that the situation elsewhere in Pakistan (scil outside Karachi and its environs) was considerably more settled, and that there was no material before it that would indicate a real prospect of harm to the applicant in Faisalabad or in other parts of the country where he may reasonably be expected to relocate. It is true that to say there is no material that shows a prospect of harm to the applicant in Faisalabad is not in terms to refer to evidence or other material. But in its context the statement is naturally to be understood as referring to the fact that there was evidence that showed a prospect of harm to the applicant in various parts of Sindh province, and that it was to be inferred from the silence of that information about other areas of Pakistan, that the hazardous parts of the country were only those referred to in the country information and that other areas were safe. Read in that way, the "no material" sentence is in truth a statement that the material put forward by the parties, together with the other evidence about the applicant's family being located in Faisalabad, was the basis of the relocation finding. The approach urged upon me by the applicant is in my view exactly what the High Court in Wu and the Full Court in Muralidharan were warning against - the examination of the Tribunal's reasons with an eye keenly attuned to the perception of error. Could its conclusions have been more fully and accurately expressed? Would evidence and material located in one part of the reasons have been better relocated or repeated in some other part? It is true that the Tribunal could have recited more of the evidence supporting its ultimate relocation conclusion. But as I have pointed out, when its reasons are read as a whole, they do refer to the evidence and other material on which the relevant finding was based. (c) no evidence to justify relocation finding The applicant contended that there was no evidence to justify the findings made by the Tribunal in relation to his relocation (s476(1)(g)). Section 476(4) provides that the ground specified in sub-s(1)(g) is not made out unless (a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or (b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist. The applicant relied on par (a), submitting that the "particular matter" required to be established before the Tribunal could reach the decision it did was that Pakistan could protect the applicant if he was located outside Sindh province. Cf Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1986) 13 FCR 511 at 515; Western Television Ltd v Australian Broadcasting Tribunal (1986) 12 FCR 414 at 429; Malik v Minister for Immigration and Ethnic Affairs (unreported, 4 April 1997)). It was said that there was no evidence that Pakistan could so protect the applicant were he to be located outside Sindh province. In my view this contention is not made out. There was a considerable body of evidence that there was great turmoil in Karachi. There was also evidence of disturbances in other parts of Sindh province, such as Hyderabad and Sukkur. But despite many press cuttings, reports and articles detailing the situation in Sindh, there was nothing put before the Tribunal by the applicant, and nothing in the country information obtained by the Tribunal, that suggested there was any relevant anti-Muhajir or anti-MQM activity in the north of the country, in particular in Faisalabad, where the applicant was born and educated, had carried on a successful business, and where his wife and children lived. The applicant did not assert that his wife had been interfered with or threatened, and the Tribunal disbelieved his claim that one of his sons had been taken away. In those circumstances the Tribunal was entitled to infer that there was no anti-Muhajir or anti-MQM activity in Faisalabad. Accordingly there was evidence upon which the Tribunal could conclude that there was no real prospect of harm to the applicant were he to relocate to Faisalabad. (d) additional ground At the hearing I allowed an amendment to the Application raising an additional ground of review, namely that the Tribunal had misapplied the law relating to relocation. It was accepted that the law as to relocation had been correctly stated, but it was said that the Tribunal had failed properly to apply it to the facts (s476(1)(e)) because it had not asked whether it was reasonable in all the circumstances for the applicant to relocate to some other part of Pakistan. It was said that the Tribunal should have had regard to the economic and logistical situation of the applicant, whether he wanted to live somewhere other than Karachi or Sindh province, and whether it was safe for him to do so. Reliance was placed on a passage from the judgment of Black CJ in Randhawa (1994) 52 FCR at 443-444, where it was pointed out that the question is not just whether an applicant could relocate to another area of a country, but whether he could reasonably be expected to do so, and that in this connection, the matters to be considered include physical, financial, logistical and other barriers preventing a person from reaching internal safety. The Tribunal expressed the view that the applicant could reasonably be expected to relocate to Faisalabad or to other parts of Pakistan away from Karachi. The claim that the Tribunal failed to consider the reasonableness of relocation to Faisalabad is not made out. A reading of the whole of its reasons shows that the Tribunal did consider that matter, and there was evidence before it which justified its conclusion that the applicant could reasonably be expected to relocate in Faisalabad. He knew the area, having lived there for at least 28 years. Indeed his application for a protection visa records that he lived there from his birth until March 1992, some 43 years. His wife and children still live there. He had established a successful business there before moving to Karachi. For the greater part of his adult life he has been a successful businessman. He has had the means to travel to London, Malaysia and Brunei. He has the ability to travel to Faisalabad: he visited his family there in 1994 on his return from London. As I have said, the evidence before the Tribunal entitled it to infer that Faisalabad was a safe place in which the applicant could live. The Tribunal disbelieved his claim that one of his sons had been taken away by the authorities, presumably from Faisalabad. The Tribunal referred to all these matters, and on the basis of them was entitled to conclude that the applicant could reasonably be expected to relocate to Faisalabad. It was also submitted that the Tribunal had made an error of law in failing to ask itself whether there was a particular place in Pakistan where the applicant could receive protection and which was reasonably accessible to him. The Tribunal was said to have taken the approach that there must be a safe haven somewhere in Pakistan solely on the basis that it was not aware of any evidence that would suggest otherwise. This complaint has no substance. The Tribunal did not do what the submission attributed to it. It did specify a place, Faisalabad, which it considered safe. As I have said, that was a conclusion open to it on the evidence. It is true that the Tribunal also said there were other parts of Pakistan, without naming them, where the applicant could reasonably be expected to relocate. But given that it did specify Faisalabad, it committed no error of law in failing to mention other places. What is important is that it was open to the Tribunal to find that Faisalabad was a safe haven, because it was outside Sindh province. For the same reason there were other places that were safe. Conclusion All the grounds relied upon by the applicant have failed, and the application should be dismissed with costs. I certify that this and the preceding twelve pages are a true copy of the reasons for judgment of the Honourable Justice Sundberg .................................................................. Associate 20 May 1997 Counsel for the Applicant: R Niall Solicitors for the Applicant: Baker & Armstrong Counsel for the Respondent: C Gunst Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 13 May 1997 Place of Hearing: Melbourne Date of Judgment: 20 May 1997