FEDERAL COURT OF AUSTRALIA

“BC” v Minister for Immigration & Multicultural Affairs [2001] FCA 393

“BC” v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N24 of 2001

MADGWICK J

16 MARCH 2001

SYDNEY

THE COURT ORDERS THAT:

1.             The application is dismissed.

2.             The applicant pay half the respondent’s costs.

REASONS FOR JUDGMENT

(revised from transcript)

HIS HONOUR:

1                     In this case, the applicant seeks the limited form of judicial review which is available in this Court against a decision of the Refugee Review Tribunal (“the Tribunal”) which upheld the decision of a delegate of the respondent Minister denying the applicant a protection visa.  Whether he is entitled to such a visa depends, of course, upon the provisions of the 1951 Convention Relating to Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (“the Convention”).  Article 1A(2) of the Convention defines a refugee as any person who:

“… owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”

2                     The amended application for review raises the following ground of review pursuant to s 476(1)(e) of the Migration Act 1958 (Cth) (“the Act”):

“the decision involved an error or law, being an error involving an incorrect application of the law to the facts as found. 

Particulars:

The RRT considered the applicant's case in the context of Moslem extremists making false charges of blasphemy against individuals.

The RRT did not consider the applicant's case in the context of the applicant having satisfied the grounds for charges to be laid against him, on account of his reconversion from Islam to Christianity and the persecutory application of that law; nor did the RRT consider the law as persecutory per se against converts from Islam to Christianity.”

Factual background

3                     The applicant is a citizen of Pakistan who was born on 16 February 1965.  He arrived in Australia on 17 December 1999.  On 17 August 2000 and 25 August 2000 the applicant lodged two applications for a protection visa which a delegate of the respondent Minister refused on 25 October 2000.  The applicant sought review of this decision by the Tribunal and on 20 December 2000 the Tribunal affirmed the delegate's decision.  The applicant has been in immigration detention since.

4                     The evidence to support his initial claims was set out in the statutory declaration lodged with his protection visa application, in which he referred to a well-founded fear of persecution based upon religion and “possibly” imputed political opinion and “social status”.  The last of these, of course, is not a Convention ground. 

5                     The applicant was raised in Pakistan as a Roman Catholic, as was his wife, and they married in 1987.  His wife's family, although Christians, did not approve of her marriage to him because he was not wealthy and had a relatively low position in society.  Two of his wife’s brothers-in-law, in particular, harassed him and his wife and attempted to break them up.  The two brothers-in-law were police officers, one of them occupying a senior post, and they perpetrated outrages such as kidnapping his wife; kidnapping his wife and children; and kidnapping and beating him.  The applicant approached other police officers for protection but he had no help from them.  He then decided to convert to Islam in order to invoke the protection of the local Moslem community against his wife's family.  This conversion had some considerable publicity in the local newspapers.

6                     Soon after this, the applicant received a note from his wife stating that she was divorcing him.  His suspicion was that his wife had been pressured by her family to write this note, she having at this time, along with the children, been spirited away from him.  With the aid of members of the Moslem community, the applicant eventually located his wife and they commenced a new life together in hiding living in a Moslem community, though with some difficulty.

7                     The Moslems who had played a crucial part in his conversion to Islam applied some pressure to the applicant to arrange for the conversion to Islam of his wife and children.  The applicant resisted this on various pretences and, indeed, he was actually rebaptised into the Christian faith by “Christian missionaries” who visited the applicant’s area in 1998.  He says that a “fatwa” was issued against him by the local “Mullanah” but, as I understand it, this was really done by way of a warning, presumably to guard against any risk that the applicant might reconvert to Christianity. 

8                     After this incident he tried to live, as he says, "very secretly". It appears that for about a year after his reconversion to Christianity he “continued to act like a Moslem and did not practice as a Christian apart from praying at home”.  His son continued at the Catholic school he had always attended and his daughters attended a Moslem school.  The applicant orally claimed before the Tribunal, in answer to the observation that he had managed to live safely as a Christian convert for over a year before departing Pakistan, that “it is very easy for police to frame a blasphemy case against an individual – all they have to do is claim that a person has spoken against Mohammad and the person will be put away for a life time”.

9                     Soon after, on 4 August 1999, the applicant departed Pakistan for Indonesia, where he had obtained a job with a Pakistani employer, who ostensibly sold carpets.  In Indonesia he discovered that his employer was actually involved in people-smuggling and currency forgery.  He claimed to fear persecution in Pakistan by reason of the fact that his employer was very influential and had connections with the Mohajir Quami Movement (MQM), a significant Pakistani political party.  The harm would arise, he feared, because he had informed the Australian Embassy officials of some of the people-smuggling activities of which he had become aware.  Eventually, the applicant fled from Indonesia to Australia, illegally, as his employer had his passport, after he paid other smugglers $1,000 to arrange for him to travel on a boat. 

10                  The submission on behalf of the applicant is that the Tribunal really confined itself to the fear that a false “blasphemy charge” might be brought against him.  It was submitted that in fact the applicant had provided material that suggested that he might be at risk of legal charges as well as community vengeance for the “apostasy” involved in reconverting back to Christianity from Islam, which on his account he truly had done, and if there were any such legal charge available to be made against him, it would be a true charge of the same general genus as blasphemy and not within the category of a false blasphemy charge.

The Tribunal’s decision

11                  The material relied on by the Tribunal is not entirely clear as to the content of Pakistani law but, as counsel for the respondent Minister points out, if the Tribunal erred as to that, it would have simply been, in an Australian court, an error as to a matter of fact.  The Tribunal cited some independent material which contained the following:

“While there is no law establishing the Koranic death penalty for apostates (those who convert from Islam), social pressure against such action is so powerful that most such conversions take place in secret.  Reprisals and threats of reprisals against suspected converts are common.  Members of religious minorities are subject to violence and harassment, and police at times refuse to prevent such actions or charge persons who commit them.”

12                  The Tribunal set out a good deal of material dealing with the blasphemy laws and quoted a US Department of State Country report on human rights practices in Pakistan, a seemingly reliable source, as to various other reprisals and incidents of attacks on suspected converts.  The Tribunal, having surveyed the evidence and material, under the heading “Findings and Reasons” said, among other things, the following:

“The applicant claims that if he were to return to Pakistan people would know the history of his conversion and he would be in trouble because anyone who converts away from Islam is considered an apostate and could be subjected to persecution at the hands of the Moslem community.  The applicant also claims that a fatwa was issued against him.  However, this was simply a note written on a piece of paper by a Mullah which was kept by the Mullah indicating that if the applicant ever turned away from Islam or failed to convert his family then he should be killed.  The fatwa was not distributed.

The Tribunal accepts that there may be some people in the local Moslem community in which the applicant lived after his conversion who may be displeased with him if it becomes known that he has converted back to Christianity.  They would be particularly displeased because it would be clear from the applicant’s actions that he converted to Islam for self-serving reasons and he used the generosity of the Moslem community to his own advantage.  When he got what he wanted (the return of his family) he reconverted to Christianity. 

…

The Tribunal also does not accept that the fatwa would be known to anyone other than the local Mullah.  The applicant is a Christian, has a readily identifiable Christian name and speaks excellent English.  The Tribunal does not accept that there is anything about the applicant that would identify him as anything other than a Christian.  There is nothing about him which would identify him as a convert from Islam to Christianity.  He will blend in easily to any Christian community.

The Tribunal notes that a number of newspaper articles appeared about the applicant and his family in the second half of 1998.  The applicant claims to have received many letters of advice and encouragement from people all over Pakistan as a result of these articles.  However, the articles appeared over two years ago now.  The applicant has had no more notoriety since that time.  The Tribunal finds that the applicant and his family and religious situation would only be known to the people who assisted him personally in the small Islamic community in which he lived in Karachi for one year.  The Tribunal is not satisfied that the applicant would be known outside of that community in either greater Karachi or Pakistan.  The Tribunal is satisfied that the applicant would be able to return to live in another part of Karachi or another place in Pakistan (such as Islamabad where his wife currently resides) in safety.  The Tribunal notes that the applicant is a person who has been willing and able to relocate for purposes of employment (having moved to Indonesia to take up employment).  He has been involved in occupations which he could pursue in most Pakistani cities (carpet selling, driving, security, kitchen hand).  Christian communities exist throughout Pakistan but predominantly in Lahore, Faisalabad, Gujranwala, Sialkot, Islamabad/Rawalpindi as well as Karachi … Given these factors, the Tribunal finds that it would be reasonable to expect the applicant to relocate to Islamabad where he believes his wife is currently residing and thus avoid any risk of harm from the Moslem community with which he previously resided.  However, the Tribunal is satisfied that the applicant could also reside with safety in an area of Karachi away from the Moslem community who helped him when he was searching for his family and for the year after his family was returned to him.

The Tribunal notes that the applicant fears harm because of the fact that two of his brothers-in-law are police officers, one of whom holds a high level position.  The applicant fears that he may face trumped up charges laid by these people or other trouble.  The Tribunal does not accept, however, that any trouble caused by the applicant’s brother-in-law would be Convention related. … the Tribunal finds that these problems are caused solely by the personal problems between the applicants and his in-laws.  The applicant claims that his brothers-in-law may reveal the fact of his conversion and reconversion to any community in which he is living.  However, the Tribunal does not accept that this would cause the applicant any

problems because he is so obviously a Christian.  The Tribunal is not satisfied that anyone would take claims made by the applicant’s brother[s]-in-law about him being an apostate seriously.

The Tribunal also finds that the applicant’s fears about potential trumped-up charges is mere speculation.

…

Finally, the applicant has stated that he fears the blasphemy laws of Pakistan.  He claims that it is easy for anyone to accuse a Christian of saying bad things about Mohammad and thereby establish a blasphemy case.  The evidence before the Tribunal indicates that no Christian has ever been executed under the blasphemy laws in Pakistan … Moreover, the Government of Pakistan has instituted procedures which are intended to prevent the abuse of the blasphemy laws.  Amnesty International stated that during 1995, following the implementation of these new procedures, no new complaints of blasphemy were reported to have been registered against Christians and that it had been informed of several instances in which administrative officers had effectively mediated when complainants intended to law charges against Christians alleged to have committed blasphemy … While there is evidence that Moslem extremists can sometimes cause difficulties for individuals by making false religious accusations against them with the police, the Tribunal is satisfied that the administrative measures put in place by the government in 1995 have effectively dealt with this problem.  Accordingly the Tribunal concludes that the administrative steps taken by the Government of Pakistan have had the effect of limiting false blasphemy charges being brought against Christians by reason of their religion.

Furthermore, the Tribunal notes that since the military coup in Pakistan in 1999 things have improved for Christians generally.  The most recent US Department of State report says, “after the coup, sectarian violence decreased.  General Musharraf emphasised the rights of religious minorities in his speeches, and the Musharraf Government stated that it was committed to protecting the rights of religious minorities.  According to persons in religious minority communities, the Musharrat Government made efforts to seek minority input into decision-making and offered cabinet positions to individuals from religious minority communities” …

In light of all of the above evidence, coupled with the evidence given by the applicant himself that he has never experienced any problems as a Christian in Pakistan per se in the past, and the fact that … nobody has ever accused him of blasphemy in the past, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution by reason of his religion on this basis if he returns to Pakistan now or in the foreseeable future.

Having considered all of the evidence before it, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason in Pakistan now or in the foreseeable future.  He is not a refugee.”

Conclusions

13                  Mr Killalea, for the applicant, in a careful argument submitted in essence that the factual finding that “[t]he Tribunal is not satisfied that anyone would take claims made by the applicants brother[s]-in-law about him being an apostate seriously” could only reasonably have been made on the assumption that, when the finding was made, the Tribunal was only considering potential false blasphemy charges.  This is because the applicant was truly guilty of some blasphemy or apostasy type offence for his actual apostasy, and would so obviously be gravely at risk from the likely outraged Moslem community, who came to his aid, if word of his reconversion should reach them, and that the Tribunal could not have had a true blasphemy type charge, or the community’s reaction to true allegations, in mind.

14                  I have considered this carefully.  It is a matter of impression and turns on how one reads the decision of the Tribunal.  In my opinion, the Tribunal distinguished between on the one hand trumped-up non-blasphemy charges, of which the applicant had also complained and, on the other hand, authentic blasphemy type charges and trouble which the applicant might face on account of his actual apostasy.

15                  The finding that “[t]he Tribunal is not satisfied that anyone would take claims made by the applicant’s brother[s]-in-law about him being an apostate seriously” was properly conceded by counsel for the respondent Minister to be a somewhat heroic one.  However, it does not seem to me that, on that account alone, it is reviewable in this Court, and counsel for the applicant, who is experienced in these matters, has not attempted to place any reliance in this Court on the possible unreasonableness of that finding.  That finding, it seems to me, really disposes of the applicant’s case. 

16                  So does the finding that he could safely relocate and live in a Christian community.  Again, with all due respect to the Tribunal, that is not a finding that would compel unanimous agreement.  However, in my opinion it is not possible to say that the Tribunal approached the question of relocation wrongly in a relevant legal sense.  I have set out the Tribunals’ reasoning and it seems to me that the Tribunal did seek to apply the substance of what was mandated in Randhawa v Minister for Immigration & Multicultural Affairs (1994) 52 FCR 432by the Full Court.  This case is unlike that of Franco-Buitrago v Minister for Immigration & Multicultural Affairs [2000] FCA 1525, a decision of Tamberlin J, in which there was an “express exclusion from consideration by the decision maker of material” plainly highly relevant to the question of the practical realities and reasonableness of an applicant relocating.

17                  It seems to me that the application must fail.

Costs

18                  As to whether the usual rule as to costs should apply, Mr Killalea points out that there was an heroic finding of fact and that it was reasonable for the applicant, as a matter of ordinary prudence, to pursue his remedies, as best they could be found, in this Court, as well as possibly in another court, success never being certain in either venue.  Thus the usual rule should not apply.  On the other hand, counsel for the respondent Minister points out that it took several attempts on the part of the applicant to state what were thought to be, the appropriate grounds of an application for review, and that an appropriate order would be that the applicant should pay half the respondent's costs in the case.  I agree with the submission of counsel for the respondent.

Disposition

19                  For the reasons given the application for review will be dismissed.  The applicant is to pay half the respondent’s costs.

Associate:

Dated:              6 April 2001