Ahmed v Minister for Immigration & Multicultural Affairs [2000] FCA 123 (18 February 2000)

Last Updated: 19 April 2000

FEDERAL COURT OF AUSTRALIA

Ahmed v Minister for Immigration & Multicultural Affairs

[2000] FCA 123

IMMIGRATION - refugee - non-governmental persecution - appellant a member of a political party - persecution by a faction of that party - whether Tribunal erred in finding that appellant would have effective protection in Pakistan - whether Tribunal obliged to consider whether there was a "real chance" that the appellant might not receive that protection.

Migration Act 1958 (Cth)

Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1990) 169 CLR 379 referred to

Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4; (1997) 142 ALR 331 referred to

Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 referred to

Minister for Immigration and Multicultural Affairs v Prathapan (1998) 86 FCR 95 referred to

Minister for Immigration and Multicultural Affairs v Kandasamy [2000] FCA 67 referred to

Minister for Immigration and Multicultural Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 referred to

NADEEM AHMED v MINISTER FOR IMMIGRATION &

MULTICULTURAL AFFAIRS

N 1007 of 1999

CARR, SACKVILLE & R D NICHOLSON JJ

18 FEBRUARY 2000

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1007 OF 1999

On appeal from a Judge of the Federal Court of Australia

BETWEEN:	NADEEM AHMED & ORS Appellant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent
JUDGES:	CARR, SACKVILLE & R D NICHOLSON JJ
DATE OF ORDER:	18 FEBRUARY 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1007 OF 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	NADEEM AHMED & ORS Appellant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

JUDGES:	CARR, SACKVILLE & R D NICHOLSON JJ
DATE:	18 FEBRUARY 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

1 This is an appeal from the decision of a judge of this Court, on 20 August 1999, dismissing the appellant's application to set aside a decision of the Refugee Review Tribunal ("the Tribunal"). The Tribunal had, on 28 April 1999, affirmed a decision by a delegate of the respondent (made on 26 July 1996) not to grant the appellants protection visas under the Migration Act 1958 (Cth) ("the Act"). The appellants comprise Mr Nadeem Ahmed and his family, but as a matter of convenience we shall refer to Mr Ahmed as "the appellant".

2 The question in the appeal is whether the Tribunal erred in law by failing to apply the "real chance" test [see Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1990) 169 CLR 379] when assessing whether the Pakistan Government would provide effective protection to the appellant against further non-governmental persecution, were he to be returned to that country.

Factual Background

3 The appellant was born on 25 August 1958 in Karachi, Pakistan. In June 1987 he went to Dubai to work, remaining there, apart from brief visits to Pakistan, until December 1995. Although the Tribunal disbelieved a substantial portion of the appellant's evidence and made strong credibility findings against him, it accepted that, to some extent, he had been politically active in relation to Pakistani affairs while living in Dubai and after he returned to Karachi. In particular, the Tribunal accepted that the appellant was a supporter of a political party which was at the relevant time known as the Mohajir Kuami Movement ("the MQM") which was renamed in 1997 as the Muttahida (United) Kuami Movement. We shall refer to that party as the MQM. According to the evidence before the Tribunal, the MQM was formed to press for the rights of Urdu-speaking Muslims who migrated to Pakistan, mainly to Karachi and Hyderabad in the Province of Sindh, when India was partitioned in 1947. It would seem that in about 1992 a break-away faction of the MQM was formed which was known as the "MQM `Haqiqi'" or "`real' MQM". We shall refer to that group as the "Haqiqi faction" to distinguish it from the mainstream MQM. The Tribunal accepted that the appellant was a supporter of the MQM while living in Dubai and that he may have organised meetings in his home there. It also accepted that the appellant joined the MQM officially in 1991 in Karachi.

The Tribunal's Reasons

4 The Tribunal, in its reasons, set out a brief history of the troubled political affairs in Pakistan over the last two decades.

5 The history included this paragraph:

"In May 1995 government control collapsed in large areas of central, eastern and western Karachi ... After mid-June the security forces gradually regained the upper hand, at the cost of resorting to extra-judicial killings. Ethnic and political violence in Karachi claimed more than 2,000 lives in 1995 and about 500 lives in 1996."

6 The Tribunal accepted the appellant's evidence of harassment in Pakistan in 1995. In particular, it accepted his evidence that, during a visit to Pakistan at that time:

"... some people from the breakaway Haqiqi faction raided his family's home, that beginning in August 1995 people from the Haqiqi faction in Dubai telephoned his home there, bothering his wife, who was pregnant at the time, and that when he returned to Pakistan in December 1995 the Haqiqi faction raided a lot of houses looking for him."

7 Before the Tribunal, the appellant's case was based upon two types of harassment. The first was by police and government forces. The appellant's evidence about this was not accepted, and no issue arises on that matter in the appeal. The second basis was persecution by the Haqiqi faction. It was the appellant's case before the Tribunal that such persecution was with "the actual or implied" consent of the Pakistan Government.

8 As we have mentioned above, the Tribunal accepted that both the appellant and his family were harassed by the Haqiqi faction in Karachi in 1995. It also accepted that since the appellant's departure from Pakistan his family may have continued to experience some harassment from the Haqiqi faction of the sort which it accepted that they had suffered in 1995, to the extent that his mother and youngest brother were forced to change their residence as a result. Although there was no express finding by the Tribunal that this level of harassment would constitute persecution for the purposes of the Convention, we accept the appellant's submission that the Tribunal's reasoning assumes that it could at least form the basis for a well-founded fear of persecution if the applicant were to return to Pakistan. The Tribunal, in its reasons, then noted that the appellant had not sought police protection either in Dubai or in Pakistan. Nor was there any evidence that his family had sought such protection since he left Pakistan.

9 The Tribunal next addressed the appellant's submission that the Pakistani police aided the Haqiqi faction. The Tribunal noted that the MQM alleged police support for the Haqiqi faction, but it found that there was no independent evidence to support the allegation. The Tribunal then cited the following passage from the reasons for judgment of McHugh J in Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4; (1997) 142 ALR 331 at 354:

"The Convention is primarily concerned to protect those racial, religious, national, political or social groups who are singled out and persecuted by or with the tacit acceptance of the government of the country from which they have fled or to which they are unwilling to return. Persecution by private individuals or groups does not by itself fall within the definition of refugee unless the State either encourages or is or appears to be powerless to prevent that private persecution." [Emphasis added]

10 The Tribunal expressed its conclusion on this submission in the following terms:

"Despite persistent allegations by the MQM that Government agencies such as the intelligence agencies and the paramilitary Rangers are involved in the attacks by the Haqiqi faction on the MQM, I do not consider that the evidence before me supports the allegations of the MQM that the killing of its workers in the context of the violence between the MQM and the Haqiqi faction is encouraged or condoned by the present Government of Pakistan. It should not be forgotten that the MQM was until very recently part of that Government.

Furthermore, the evidence does not in my view suggest that the Government is powerless to halt the political violence in Karachi. To the contrary, the information available to me indicates that the number of murders in Karachi in fact dropped following the imposition of Governor's rule in Sindh ... While one can argue about the methods used by the Government (see, for example, Amnesty International, `Pakistan: Basic human rights in danger as the army is called in to assist police', ASA 33/17/98 23 November 1998) I do not think that it can be suggested that the Government is powerless to quell the tide of violence sweeping Karachi. Moreover the evidence is that members of the Haqiqi faction as well as the MQM have been arrested in the current crackdown ... I therefore do not accept that the Applicant cannot expect effective protection from the Government of Pakistan if he experiences further harassment from the Haqiqi faction and I therefore do not consider that the Applicant has a well-founded fear of being persecuted if he returns to Pakistan on the basis of the conflict between the various factions of the MQM or the general level of political violence in Karachi."

The respective submissions and our reasoning

11 The appellant submitted at first instance, and before us, that in the passage which we have last quoted above, the Tribunal did not address the question whether there was any real chance that the government authorities were unwilling or unable to provide the applicant with protection from harassment by the Haqiqi faction. The respondent submitted to the primary judge, and his Honour agreed, that the appellant's submission misconceived the significance of effective protection for the purposes of the Convention. That significance, so the respondent contended, was that effective protection was relevant to the (overall) question whether the applicant had a well-founded fear of persecution. It was in that context that the "real chance" had to be considered. His Honour referred to the fact that the Tribunal's reasons were replete with references to "real chance" in its assessment of the existence of any objective basis for the fear of persecution claimed by the applicant. This was the main argument in the appeal and we deal with it in detail below. But first we shall deal with some other submissions put forward on behalf of the appellant.

12 The appellant submitted that the Tribunal had, implicitly misdirected itself on the question of effective protection. It was implicit in the approach adopted by the Tribunal, so the appellant contended, that it was of the view that the government itself must take a partisan political position in order for there to be persecution of a non-governmental nature within the Convention. This was said to arise from the Tribunal's apparent acceptance that police or other government agencies participated in or at least acquiesced in the political violence, but were not "specifically supporting one side or the other".

13 We do not accept that submission. In our view, there was no such apparent acceptance on the Tribunal's part. A fair reading of the relevant passage (at the foot of page 243 of the appeal book) is that the Tribunal was reciting the allegations put forward by the MQM, and a belief expressed in the US State Department 1998 Country Report and in the Human Rights Watch World Report for 1999, that some attacks were believed to have been carried out either with the participation or at least the acquiescence of police or other government agencies. However, as the Tribunal noted, neither report suggested that the police or such agencies were specifically supporting one side or the other.

14 The Tribunal then moved on to the question whether the attacks by the Haqiqi faction were encouraged or condoned by the Government of Pakistan. As the above extract from its reasons shows, it found that that was not the case. Finally, the Tribunal considered whether the Pakistan Government had power to halt the political violence in Karachi and had exercised that power, to the extent that the appellant could expect effective protection by that Government if he were to experience further harassment from the Haqiqi faction.

15 In our view, it is quite clear that the Tribunal, by taking the course of reasoning which we have outlined, was not implicitly adopting the view that the Government itself must take a partisan political position before persecution can arise on a Convention ground. It recognised that a person may have a well-founded fear of persecution for reasons of political opinion even though the Government is neither the persecutor nor offering partisan support to the persecutors. The Tribunal accepted that it would be enough, for example, for the Government simply to condone political violence regardless of the identity of the perpetrators. The Tribunal addressed whether this was such a case, but found against the appellant.

16 The Tribunal's reasons can be seen as amounting to an acknowledgment that there is political violence, but also an assessment that the Government of Pakistan has the power to quell it and has exercised that power to the extent that the appellant will receive effective protection.

17 In written submissions, the appellant suggested that the Tribunal, by referring to the circumstances that he had not sought police protection either in Dubai or in Pakistan and that there was no evidence that his family had sought such protection since he left Pakistan, had taken the position that the appellant could not rely upon a claimed lack of effective protection in such circumstances. Again, we do not think that that is a fair reading of the Tribunal's reasons. It makes no such express conclusion. The fact that an applicant for refugee status has not sought police protection may, of course, be due to fear of the police or knowledge, based on common experience, that such an approach would be futile. The appellant told the Tribunal that he had not reported the telephone harassment to the Dubai police because he would have had to explain why he had received the threats. This would have disclosed his political activities in a country where political activity was banned. The appellant does not appear to have tendered any explanation for his failure and his family's failure to seek police protection in Pakistan. Perhaps some explanation is implicit in the appellant's assertion (eventually rejected by the Tribunal) that the police supported the Haqiqi faction. Our reading of the Tribunal's reference to the matter of protection not having been sought is that it was referring to a fact i.e. failure to seek protection, bearing on its ultimate findings, but that the Tribunal did not take the further step suggested by the appellant in his submissions. The significance of the failure of the appellant and his family to seek police protection, as we see it, was that the Tribunal had no direct and particular evidence of what would be the likely result of such an approach. This leads us to the appellant's main point.

18 The appellant submitted that the Tribunal had erred by finding only that the Pakistan Government was able to provide effective protection but did not address the question whether that government would do so. In particular, so the appellant submitted, the Tribunal had erred in law by not considering whether there was a real chance that the Pakistan Government would not in fact provide protection. Two matters were put forward as demonstrating such error. The first was the apparent significance attached by the Tribunal to the failure of the appellant and his family to seek police protection. We have dealt with that matter immediately above. The second was that the Tribunal had applied an incorrect standard of proof i.e. the balance of probabilities rather than "a real chance".

19 Once more, we do not think that a fair reading of the Tribunal's reasons justifies the submission that it found only that the Government of Pakistan was able to provide effective protection, but did not address the question whether it would do so.

20 Actual exercise of a power, of course, demonstrates both its existence and a willingness to use it.

21 At p 6 of its reasons, the Tribunal referred to evidence of what took place after the imposition of what was known as "Governor's rule" in Sindh in late 1998. It noted that:

"Around 1050 suspects have been arrested since the imposition of Governor's rule, 296 of whom came from the MQM while 90 are from the breakaway "Haqiqi" faction and the rest are from other groups."

22 The Tribunal, in the passage which we have earlier set out above, referred also to the reduction in number of murders in Karachi following the imposition of Governor's rule in Sindh. It again referred to evidence that members of the Haqiqi faction as well as the MQM had been arrested in what it described as "the current crackdown". The acceptance of this evidence demonstrates, in our view, that the Tribunal found not only that the Government of Pakistan had the power to halt political violence in Karachi but that it was prepared to exercise that power to that end.

23 It was on the basis of those findings i.e. of governmental power and preparedness to exercise it, that the Tribunal reached its conclusion that the appellant would receive effective protection from the Government of Pakistan if he experienced further harassment from the Haqiqi faction. It is true that the Tribunal's conclusion is somewhat inelegantly expressed (by way of a double negative in the last sentence of the passage reproduced above). Nonetheless, we think the Tribunal made a clear finding that the applicant would receive effective governmental protection from persecution by the Haqiqi faction. That, in turn, was the basis for its finding that any fear of persecution which the appellant may have held, was not objectively well-founded.

24 The appellant's submissions focussed on slightly less than two pages of the Tribunal's reasoning which dealt with the issue of government protection. It is true that in the passages relating to the Haqiqi faction the Tribunal made no express reference to the real chance test. However, immediately before turning to the matter of the Haqiqi faction, the Tribunal concluded its reasoning in relation to government-sourced persecution by expressing its refusal to accept that there was "... a real chance as distinct from a remote chance, that the applicant will be arrested, tortured or killed as a result of his involvement in the MQM ...".

25 The Tribunal had also, earlier in its reasons, clearly shown that it understood that the objective test was based on an assessment of a real chance of persecution.

26 In our view, it was open to the Tribunal on the evidence to conclude that the applicant would receive effective protection on his return to Pakistan and from that to extrapolate that any fear which he held was not well-founded, without having to repeat that this meant there was no real chance of harassment amounting to persecution by the Haqiqi faction. The Tribunal's reasons are to be given a beneficial construction. Its clear finding that the appellant will receive effective protection justifies, in our opinion, an implied assessment by the Tribunal that there was no real chance that the Pakistani authorities will fail to provide him with effective protection.

27 It must be remembered that it is not for this Court to consider the correctness of the Tribunal's finding that the appellant would receive effective protection from the Government of Pakistan. Mr Basten advanced some criticisms of the Tribunal's reasoning, particularly its apparent willingness to discount the significance of large-scale political violence in Pakistan. But the Tribunal placed considerable weight on the changes that had occurred in Pakistan since late 1998. The significance of those changes was a matter for it to assess. Even if the Tribunal's reasons are not to be read as implicitly accepting that there was no real chance that the Pakistani authorities will fail to provide him with effective protection, we do not think that the Tribunal erred in law. There are cases in which this Court has noted, with apparent approval, the fact that the Tribunal has approached the matter of effective protection from non-governmental persecution by asking whether there was a real chance that the relevant governmental authorities would be unable or unwilling to provide a level of protection sufficient to remove a real chance of persecution of the applicant for refugee status if returned to the country in question. The authorities include Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 at 566-568 (per von Doussa J with Moore and Sackville JJ agreeing); Minister for Immigration and Multicultural Affairs v Prathapan (1998) 86 FCR 95 at 101-106 (per Lindgren J expressly agreeing with the decision in Thiyagarajah and Burchett and Whitlam JJ agreeing with him); Minister for Immigration and Multicultural Affairs v Kandasamy [2000] FCA 67 at 50-52. In Prathapan at 101-102 Lindgren J pointed out that in terms of the Convention definition of "refugee", while "unwillingness" of an applicant to avail himself or herself of the protection of the relevant country was limited to an unwillingness to do so because of ("owing to") a well-founded fear of persecution for Convention reasons, an inability to do so was not so limited. We do not think that anything turns on that distinction in the present case.

28 There are also indications in Minister for Immigration and Multicultural Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 at 576 that a subsidiary question, such as whether a political profile might be attributed to an applicant for refugee status, may need to be answered by a Tribunal when considering whether there is a real chance of an affirmative answer to the question.

29 However, the fact that this Court has endorsed such an approach by a Tribunal to the question of effective protection, does not, in our view, require that in every such case the Tribunal must take such a course. In the earlier part of the reasoning of six of the judges in Guo (at 572) their Honours emphasised that using the real chance test as a substitute for the Convention term "well-founded fear" was to invite error. Their Honours went on to say this (at 572-573):

"A fear is "well-founded" when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation. In this and other cases, the Tribunal and the Federal Court have used the term "real chance" not as epexegetic of "well-founded", but as a replacement or substitution for it. Those tribunals will be on safer ground, however, and less likely to fall into error if in future they apply the language of the Convention while bearing in mind that a fear of persecution may be well-founded even though the evidence does not show that persecution is more likely than not to eventuate."

30 In our view, the Tribunal was engaged in a purely factual assessment of whether the Pakistani authorities could and would provide the appellant with effective protection from the harassment of the Haqiqi faction. It did not repeat the words "real chance" in that context. But it expressly and directly applied the language of the Convention when, having found that the Pakistani Government would provide the applicant with effective protection, it determined that his fears of persecution were not well-founded. In our opinion no legal error on its part has been demonstrated.

31 In written submissions, the appellant contended that the Tribunal had adopted an approach which was inconsistent with the observations of Gaudron J in Chan at 415. This was a reference to the manner in which the Tribunal assessed changes in the situation in Karachi during the three years after the appellant departed from Pakistan. The respondent, in his written submissions, argued that the statement by Gaudron J did not represent the views of the Court: Minister for Immigration and Ethnic Affairs v Eshetu [1999] HCA 21; (1999) 73 ALJR 746 at 772 per Gummow J. In oral submissions senior counsel for the appellant took the Court to statements in Chan at 387, 388, 391, 399 and 406 which were said to support the approach taken by Gaudron J. Counsel for the respondent disputed that interpretation of those passages. In reply, senior counsel for the appellant submitted, in effect, that there was nothing wrong with the Tribunal going to the most recent material available to it as the basis for its conclusions. However, that approach, it was submitted, carried with it the risk that the Tribunal would not identify the relevant issue and then not deal with it appropriately. As this submission leads back to the errors which the appellant claimed had been made by the Tribunal and we have discussed these above, there is no need for us to consider further the approach taken by the Tribunal to this issue.

32 Despite the appellant's disclaimer, in reality, the submissions advanced on his behalf require, in our view, an over-zealous analysis of the Tribunal's reasoning and an equally impermissible trespass into the merits.

Conclusion

33 For the foregoing reasons we will dismiss the appeal with costs.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of Justices Carr, Sackville & R D Nicholson.

Associate:

Dated: 18 February 2000

Counsel for the Appellant:	Mr J Basten QC with Mr B M Zipser
Counsel for the Respondent:	Mr R Beech-Jones with Mr J D Smith
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	14 February 2000
Date of Judgment:	18 February 2000