Applicant S1011 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 461

FEDERAL COURT OF AUSTRALIA

Applicant S1011 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 461

APPLICANT S1011 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 231 of 2005

WILCOX J
14 APRIL 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 231 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	APPLICANT S1011 OF 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	14 APRIL 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        Leave be granted to the appellant to file and rely on the amended notice of appeal.

2.        The appeal be dismissed.

3.        The appellant pay the costs of the respondent.

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	NSD 231 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	APPLICANT S1011 OF 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	WILCOX J
DATE:	14 APRIL 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1. This is an appeal from a decision of Federal Magistrate Lloyd-Jones dismissing an application for review of a decision of the Refugee Review Tribunal (‘the Tribunal’) made as long ago as 17 February 1998. The Tribunal had affirmed a decision of a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, to refuse to grant the applicant a protection visa. Pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth), the Chief Justice directed this appeal be heard by a single judge.

2. The Tribunal accepted that the appellant is a citizen of Pakistan who arrived in Australia on 20 November 1990. On 19 March 1991, he lodged an application for refugee status with the Department of Immigration and Ethnic Affairs. As from 1 September 1994, pursuant to s 39 of the Migration Reform Act 1992 (Cth), that application was deemed to be an application for a protection visa. 

3. The delegate made a decision on 20 June 1996 refusing to grant a protection visa.  I am not aware why there was a lapse of over five years between the application for refugee status and the delegate's decision. 

4. On 15 July 1996, the appellant sought review of the delegate’s decision. 

5. The appellant claimed before the Tribunal that he feared persecution on account of his political opinion.  This claim was rejected and no issue arises before me about that aspect of the Tribunal's decision.  Accordingly, I need not go into the detail of it.

6. The appellant also claimed that he was a Muslim from the Shia community and his life was at risk in Pakistan, in particular because he was the eldest son of a well-known Shia leader.  Apparently, the appellant's father died in 1994.  In its reasons for decision, the Tribunal expressed this claim in the following way:

   ‘The applicant based his new claim on his father's status in the Shia community.  He claimed his father was well known in the community and a book has been written about him.  The applicant claimed that his father had received threats from Sunni groups and he was on a “hit list”.  The applicant claimed that he was on a hit list too because he was the eldest son of his father.  The Tribunal accepts that his father was a Shia leader but the applicant's father died of natural causes and not by Sunnis.  The applicant's mother and six brothers and sisters all live in Pakistan practising their religion and none have been harmed by the Sunnis.  Apart from the applicant's assertion that he was on a hit list the applicant provided no satisfactory evidence of why he would be targeted by militant Sunnis because of his father's role in the Shia community.’  [Emphasis added]

7. This paragraph from the Tribunal's reasons for decision gives rise to the two grounds of appeal that appear in an amended notice of appeal filed in Court today.  Mr Tony Silva, solicitor for the appellant, put arguments in relation to both of them. 

8. The first ground of appeal is as follows:

   ‘(a)His Honour the Federal Magistrate erred by not holding that the Tribunal made jurisdictional error as it made a critical finding without evidence, (page 135.40).  [This is a reference to the emphasised sentence in the passage just quoted]  (Alternatively the finding was Wednesbury unreasonableness as there was scarce evidence).  It found that the applicant's mother and six brothers and sisters who live in Pakistan have not been harmed.’

9. Particulars of this ground refer to a section of the transcript of the hearing before the Tribunal.  The full transcript is before the Court.  At page 12 of the transcript, there was a discussion between the appellant and the Tribunal member concerning various people who have been killed and the appellant’s allegations about Sunni militants killing Shiite leaders.  About the middle of that page, the Tribunal member said to the appellant:

   ‘All the evidence you have given, fear that you are related to your father.’

   The appellant replied:

   ‘Yes, I am son and I have a fear.’

   The Tribunal member said:

   ‘What I am saying is, your brothers and sisters are related to your father and they are living in Pakistan, none have been harmed.’

   The appellant replied:

   ‘I am the eldest son.  My brother doesn't live at same place, they keep running around.’

   The Tribunal member said:

   ‘When I initially asked you.  You did not mention about anything.’

   The appellant referred to the brother going to Peshawar and commented:

   ‘He don't live in Peshawar, he move because he is not safe.’

   The Tribunal member said:

   ‘One brother.’

   The appellant responded:

   ‘All brothers.  Because its not safe, my father-in-law.’

   There was then discussion about the residence and personality of the father-in-law. 

10. The complaint made by Mr Silva is that there was no evidence before the Tribunal that the mother, brother and sisters had not been harmed.  It will be recalled that ‘harmed’ was the word used by the Tribunal member in the exchange with the appellant to which I have just referred.  In that exchange, the appellant did not respond to the Tribunal member by denying her assertion that his brothers and sisters had not been harmed but by making two statements:  first, that he was the eldest son (and inferentially at greater risk, I suppose); and, secondly, that his brother (in the singular) does not live at the same place.

11. It is true the appellant then used the plural pronoun ‘they’ and later said ‘all brothers’.  This might suggest all of his brothers move around.  However, there is no substance in the first ground of appeal.   The whole discussion between the appellant and the Tribunal member was in the context of physical violence, and in relation to his claim that his life was at risk.  I do not think the Tribunal member used the word ‘harmed’, or would have been understood by the appellant to have used that word, so as to include being inconvenienced, even highly inconvenienced, by having constantly to move residence.  Both people were talking about physical harm with a substantial chance of death.

12. In the paragraph from the reasons, set out above, ‘harm’ is used in the same context.  The term ‘hit list’ is used more than once.  This term conveys the notion of a person being targeted for physical violence, possibly potentially fatal violence.  I do not think the Tribunal member's reasons should be understood as saying anything about whether or not the appellant’s brothers have had to move residence.

13. Mr Silva says that, if the Tribunal's reasons are construed in this manner, then the second ground of appeal is made good.  That ground was expressed in the following way:

    ‘His Honour the Federal Magistrate erred by failing to hold that the Tribunal misunderstood the term “harm” and thus made jurisdictional error.’

14. When I discussed this ground with Mr Silva, he seemed to refine the ground somewhat by putting a submission that the Tribunal fell into jurisdictional error because the member failed to consider whether being forced to move around amounted to persecution within the meaning of the Convention on the Status of Refugees.  The argument is that the Tribunal should have taken from the exchange, which I have set out above, that if the appellant returned to Pakistan he too would be forced to move his residence frequently so as to avoid physical harm.

15. Mr Silva conceded the appellant never expressly claimed a well-founded fear of a form of persecution that would involve him having frequently to move his residence; to use the vernacular, being ‘on the run’.  However, Mr Silva said:

    ‘This is a matter that fairly arose from the material before the Tribunal and therefore should have been considered.’

16. It has been said more than once, in this Court, that the Tribunal is obliged to consider the whole of the material before it in each case and to give consideration to any facts that point to persecution of a particular type, even if the relevant applicant has not expressly based his or her claim on that evidence or framed his or her claim in that particular way.  However, it has also been said that the material must fairly raise the issue.  The Tribunal is not obliged to scrabble around trying to find some ground which is neither expressly raised nor evident on a fair view of the presented material. 

17. Perhaps this was a case where there was material that would have required the Tribunal, if it had not reached some particular findings of fact, to consider whether the appellant would be forced to live a life on the run, if he returned to Pakistan, and (if so) whether this should be regarded as being such a degree of disadvantage as to amount to persecution within the meaning of the Convention on the Status of Refugees.  However, I think Mr R T Beech-Jones, counsel for the Minister, is correct in saying that other findings made by the Tribunal obviated any such obligation.  As Mr Beech-Jones pointed out, the Tribunal was not persuaded that the appellant's status as the son of a well-known Shia leader was likely to cause him to be targeted by Sunni militants.  The Tribunal member simply did not accept what the appellant said to her in this regard.  The member went into some detail about the way in which this claim had been made and, in particular, the appellant’s failure to raise it at an earlier stage. 

18. Secondly, the Tribunal made a finding about the nature of the communal violence, involving Sunnis and Shias, which she accepted did occur in Pakistan from time to time.  The Tribunal member said this:

    ‘The Tribunal finds that the conflict in Pakistan between the Sunnis and Shia’s involves incidental communal violence as a result of clashes between the groups militant organisations.  The Tribunal finds that if the applicant were to suffer harm as a result of the clashes between the Sunnis and Shias such harm does not amount to persecution within the meaning of the Convention.  Moreover, the Tribunal finds that protection is available to the applicant from the Pakistani authorities, who have indicated that they are determined to control incidents of sectarianism.’

19. Having regard to these findings, I think Mr Beech-Jones is correct in submitting that the necessary foundation of the implicit claim identified by Mr Silva is lacking.  Mr Silva’s argument is that the Tribunal should have considered whether the fact that the appellant was the son of a well-known Shia leader meant he had a well-founded fear of being forced to be on the run.  However, firstly, the Tribunal member said that the Sunni-Shia communal violence which occurred in Pakistan was incidental violence as a result of clashes between the militant arms of the two sects rather than targeted violence against individuals.  Secondly, the member was not satisfied, in any event, that the appellant's status as the son of a Shia leader, would be a reason for targeting him. 

20. These were findings of fact.  The appellant may disagree with them, but they provide an answer to the submission put by Mr Silva.  This Court is not free to review the Tribunal’s findings of fact.

21. It seems to me that both grounds of appeal fail.

22. I grant leave to the appellant to file and rely on the amended notice of appeal.  However, I order the appeal be dismissed with costs.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:             27 April 2005

Solicitor for the Appellant:	Mr T Silva
Solicitors for the Appellant:	Silva Solicitors
Counsel for the Respondent:	Mr R T Beech-Jones
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	14 April 2005
Date of Judgment:	14 April 2005