BEQ19 v Minister for Immigration

[2020] FCCA 1331

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEQ19 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1331

Catchwords:
MIGRATION – Protection Visa – whether Administrative Appeal Tribunal decision affected by jurisdictional error – where no error established in Administrative Appeal Tribunal’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Cases cited:

CGA15 v Minister for Home Affairs [2019] FCAFC 46

CID15 v Minister for Immigration and Border Protection [2017] FCA 780

Applicant: BEQ19

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 101 of 2019

Judgment of: Judge Vasta

Hearing date: 15 May 2020

Date of Last Submission: 15 May 2020

Delivered at: Brisbane

Delivered on: 15 May 2020

REPRESENTATION

Counsel for the Applicant: Mr M.G.S. Crowley

Solicitors for the Applicant: AUM Legal

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. That the name of the First Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2. That the Applications filed 20 March 2019 and amended on 6 March 2020 are dismissed.

3. That the Applicant pay the costs of the First Respondent’s fixed in the sum of $5,000.

IT IS NOTED:

A.That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged and the Court has received a request in writing from either party seeking that written reasons be produced.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

PEG 101 of 2019

BEQ19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. On 21 February 2019, the Administrative Appeals Tribunal (“the AAT”) affirmed a decision not to grant the Applicant, BEQ19, a protection visa.  On 20 March 2019, the Applicant asked this Court to review that decision. 

2. The Applicant is a citizen of Pakistan, having been born in February 1992 in Gujrat City in the Punjab Province.  The Applicant came to Australia on 1 May 2014 on a student visa.  That visa was cancelled by the Department because the Applicant failed to start his studies.  The Applicant then made a claim for protection on 4 September 2014.

3. In his application, the Applicant claimed that, in Gujrat City, he lived with his parents, and brother and sister.  He said that he had obtained a Diploma of Associate Engineering in Pakistan in 2011.  He worked as a technician for a company in Gujrat for a year, and then went to work in his father’s businesses which were a fruit shop and a wholesale shop. 

4. He claimed that his mother was well known as a teacher of the Shia religion to local children in the front room of their home, and that she did this for about an hour each day, apart from Sunday, and that she taught at religious functions in the community hall held during the month of Muharram each year.

5. He claimed that his mother had never been threatened as he believes any militant group would not harass women.  The Applicant claimed that his brother was involved in helping community leaders during functions during Muharram.  The Applicant claimed that he was threatened and/or attacked by Sunni groups on two occasions because he was a Shia, and that is the reason that he left Pakistan to come to Australia. 

6. The first incident happened in about October 2013.  He said that he and his brother were on the street in front of the main mosque. He said it was sunset but still light, and that three young men, that he estimated as being about 24 years old, on a motorbike stopped in front of them.  The men did not address the two of them by name but did threaten them, telling them to stop what they were doing to do with religion or else these three men would kill the Applicant and his brother.  The Applicant claims that this was an angry confrontation and then the men left.  He said that he had not seen these men before, and that they went away and he was frightened, and went home and told his father about the incident.

7. He said that his father then told him that he, the father, had received verbal threats from members of a militant religious group, that they - that is, the group - would kill his sons because his sons were members of the Shia community.  The Applicant said that his father told him that three military people from that group went to his shop recently, but he did not report this to the police because he was too frightened.  The father said that he did not tell the Applicant or his brother about what had happened as he did not want to worry them.

8. He said that they were confused, and did not go to the police as they did not think the police would do much.  The Applicant said that other Shia Muslims in their town had been killed; that in 2013, a well-known Professor at the University of Gujrat was shot and killed, and there was another prominent person who was also shot and killed.  The Applicant said as far as he knows no one was even arrested for these killings. 

9. The Applicant claimed that on 20 November 2013 at about 7.00pm, he and his brother and a third man were walking down the main street close to the Imam Bargah where the Shia pray. This was the main mosque, and that then six men on three motorbikes came past and called out the Applicant’s name. 

10. He said that he did not know how they knew his name, but he surmises it may have been because he was the person who was most vocal at the confrontation in October 2013.  The Applicant said it was dark, but there were street lights and he could see these men.  Three of them got off the motorbikes, and the Applicant recognised them as the same people who had previously threatened him and his brother.

11. He said two of these men had guns.  Two of them had big guns and one of them had a small gun.  He said that the men then said that they were going to teach the Applicant and his brother a lesson, and they fired two or three shots at them.  The Applicant, his brother, and the third man ran and hid behind a wall at the mosque.  The shots missed them but they were frightened.  The Applicant said he went home and told his father, and they went to the police station where his father made a report.  He did not know where the third person went.

12. The Applicant said he did not know the men personally, although he recognised the two from before.  He gave a description of the men to the police, and the police gave the Applicant to understand that they knew who these men were and that they were wanted by the police.  The Applicant said that the police said that they would look for the men but they did not find them. The Applicant said that he did not see these men again.  The police report that the Applicant provided to the Tribunal stated that those offenders had been identified.

13. The Applicant said that he was targeted because of his family’s involvement in the Shia Muslim religion, and especially because of his mother’s teaching and his brother’s involvement in religious teachings and prayer.  He said that he believes that his father was not targeted because the group targeted younger males rather than the older generation. 

14. The Applicant said that his father was worried because of the shooting and said to the brothers that they had to leave Pakistan.  He said that his father made arrangements for his brother to go to Libya, and the Applicant said that he himself was sent to hide at his uncle’s house because it was too dangerous for him to go out on the streets.

15. He said that his uncle’s home was about four kilometres from the Applicant’s family home, and he stayed there until he left Pakistan for Australia.  When he was at his uncle’s house, the Applicant claimed that he never left it and did nothing.  The Applicant said that arrangements were made for him to come to Australia to study because he had always wanted to pursue further studies in engineering.  He said that his mother is not teaching anymore because of the incident, and his brother is not doing religious studies in Libya, and also that his brother had left Libya and was now in Germany.

16. The Applicant said that he feared going back to Pakistan as he fears that he would be killed there.  He said that he cannot live anywhere else in Pakistan as Shias are treated the same everywhere, and the militants will know where he is because of the family’s involvement in the religion.  He will have no freedom as he will be unable to practise his religion, and he said it is hard to find work in Pakistan even for a person with a diploma in engineering.  If he goes to another area in Pakistan, he will have nowhere to live and no support from his family, and he will be at risk of harm.

17. The Tribunal thoroughly considered these claims in the formal hearing that it held.  The Applicant expanded upon his claims as to what occurred in 2013.  He conceded that the persons who accosted him did not ever talk about his mother or about the activities of the brother who was there present.  The Applicant claimed that because of his brother’s involvement and because of his mother being well known in the community, these persons would have known that he, the Applicant, would help his mother and brother with their activities, and he claimed that this was why he was a target.

18. While the Applicant could not say that the men had given a specific reason as to why they had stopped the Applicant, the Applicant surmised that they wanted to threaten him and his companions and warn them. 

19. The AAT found that because of the vague nature of the threats that it was possible that the Applicant was simply picked on because he happened to be outside the mosque at that time, rather than him being targeted personally.  The Applicant said that the incident at the father’s shop occurred about two weeks before the incident involving the Applicant and his brother.

20. When asked as to whether this sort of incident had occurred to any other members of the Shia community, the Applicant said he was not aware, but did know that the university professor had been killed in 2013 as well as other people of the Shia faith having also been killed that year. 

21. The Applicant then spoke of the second incident that he said occurred in November 2013 when the attackers called out to the Applicant by using his first name, and that they said that they would teach him a lesson.

22. The Applicant recalled that one of the shooters had an AK47 and the other a normal handgun.  He said that he believed that the intention of these people was to kill him, though there were no more shots fired than those fired originally.  The Applicant, as I have said, provided a copy of the police report about that incident, and it named three of the people involved, and the Applicant explained that this was because the police worked out who these men were.  The Applicant reiterated that he and his family were quite significant within the Shia community and that the majority Sunni population targeted Shia Muslims because they did not want him to get recognition. 

23. The Applicant claimed that, because Shia was a minority group, he would not be provided with protection and, therefore, his life would be in danger if he were to return to Pakistan.  The Applicant was asked whether there was anything that occurred between November 2013 and May 2014 when he left Pakistan to come to Australia on a student visa.  The Applicant said that during this period, his father had started to make arrangements for him, and the Applicant stated that he stayed at his uncle's house and remained hidden there for safety reasons.

24. He said during that six-month period, he did not work, he did not go to the mosque, and he did not leave the house.  The Applicant said that his father had owned the shop, but his father was no longer in business because the father could not run the shop by himself after his brother had left the country and gone to Libya. 

25. The Applicant then made a claim that his family home had been pelted with stones, and that his family received threatening phone calls with people asking the whereabouts of the Applicant and his brother.

26. The Tribunal rejected this claim, in short, because the Applicant did not raise this claim until prompted by the Tribunal as to whether there was anything else that was happening in Pakistan since he left, and also that the Applicant claimed that his parents did not inform him about the phone calls to warn him not to return to Pakistan and, finally, that the Applicant’s parents did not tell the callers that the Applicant and his brother were overseas which may well have put a stop to the calls.  The Tribunal did not accept that the Applicant’s parents’ home was stoned, and found that this claim was fabricated to strengthen the Applicant’s protection claim.

27. The Tribunal was not satisfied that there was any credible evidence of any group or person having an ongoing interest in the Applicant in the sense of wanting to do him harm. 

28. The Tribunal asked the Applicant how his father was now supporting his mother and sister if he were no longer working.  The Applicant answered that he and his brother work and send money to the parents to help them get by.  He explained that his parents rely on what he and his brother send them.  The Tribunal noted that, because he had sold the business so as to send his sons overseas, that the father now relied upon them to support him. The Tribunal said that this now was a strong motivation for the Applicant to want to remain in Australia.

29. The Tribunal ended up accepting that the incidents that the Applicant spoke of from 2013 did actually occur.  I have accepted that this includes what the Applicant says was the motivation of the persons who committed these acts against the Applicant. 

30. Notwithstanding this, the Tribunal did not accept that the Applicant faced a real chance of serious harm or a real risk of significant harm if he were to return to his home area of Pakistan in the foreseeable future.  The Tribunal acknowledged the 2013 incident, but noted that those incidents occurred five years before the Tribunal was looking at the matter, and that the security situation in Pakistan had improved.

31. The Tribunal accepted that the Applicant may have had a particular profile in 2013 because of what his mother and brother would do in their area, but the Tribunal did not accept that this profile could be characterised as being “high profile”.  The Tribunal did not accept that the Applicant currently has a profile that sets him apart from other Shia Muslims in his community.  This is because the Applicant’s brother is no longer in Pakistan, the Applicant’s mother no longer teaches, and over five years had elapsed since the incident that took place in 2013.

32. The Tribunal then had regard to country information to answer the Applicant's claims that he would be in danger if he returned to Pakistan.  The Tribunal noted that Shia Muslims are not physically or linguistically distinguishable from Sunni Muslims.  However, Shia mosques are distinguishable from Sunni mosques.  Shias are prominent during Shia religious events and pilgrimages, especially ones to Iraq or to Tehran.  The DFAT information was that there was no evidence of systemic discrimination against Shias in Pakistan in gaining employment in the public service, police, military or the private sector.

33. The DFAT report noted that there was some low level anti-Shia discrimination at the community level which could manifest in violence or damage to property.  The Tribunal quoted extensively from the DFAT report as to the dangers that may exist with regard to Shia Muslims in Pakistan.  The Tribunal did not accept that the Applicant possessed any of the aspects which would put him at any risk of violence. 

34. The Tribunal noted that, in looking at the security situation in 2018, the Punjab area recorded four attacks that killed 20 people. This was far lower than attacks that occurred in the Khyber region or in Balochistan.  The Tribunal suggested that the Punjab was safer than other areas of Pakistan. 

35. The Tribunal had recourse to the UK Home Office’s report regarding Shia Muslims.  Significantly, that report noted that although there continue to be targeted attacks in Shia-dominated areas, these are infrequent and do not generally amount to substantial grounds for considering there is a real risk of persecution and/or serious harm.  However, the report also noted that, it must be considered whether there are particular factors relevant to the person which might increase the likelihood of them facing a real risk of persecution or serious harm.  Each case must be considered on its facts with the onus on the person to demonstrate that they face a particular risk.

36. The Tribunal was of the view that the Applicant’s statements at the hearing about the security situation in Pakistan were out of date, and did not take into account the improvements in recent years.  The Tribunal said that the Applicant’s statements do not reflect the current situation. 

37. The Tribunal did not accept that the Applicant or his family have a profile that creates a real risk or a real chance of serious or significant harm for him should he return to Pakistan. 

38. The Applicant claimed that he would find it difficult to find employment if he returned to Pakistan. The Tribunal did not accept this claim. 

39. The Tribunal said that the area in which his family lived was an area with a majority Sunni population.  The Applicant said that his family lived in Jalalpur Jattan which, it would seem, was about 15 kilometres northeast of the centre of Gujrat.  It would seem that might make it a suburb of Gujrat but that is not clear.  The Tribunal did not locate any statistics in relation to that particular area, but accepted that Shia Muslims were in the minority compared to Sunni Muslims in that area.

40. The Tribunal also noted that the areas in the Punjab that had been identified by the DFAT report were not in the area that either includes or borders Jalalpur Jattan or Gujrat City.  The Tribunal did not accept that the Applicant has a well-founded fear of persecution because of his Shia faith. 

41. Having come to the conclusions that the Tribunal did, the Tribunal did not accept, on the evidence, that there were substantial grounds of believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia, there was a real risk he would suffer significant harm.

42. The Tribunal was satisfied that the Applicant would be able to subsist as his immediate family continued to live in Gujrat, and that they would support him and he would find employment. The Tribunal was not satisfied that the Applicant met the refugee criteria, nor that he satisfied the complementary protection criteria. For those reasons, the Tribunal affirmed the decision not to grant the Applicant a protection visa. 

43. The sole ground of the application was made in an amended application that was filed on 6 March 2020. It reads:

    1A. The Second Respondent’s decision was vitiated by a misconception or misapplication of the ‘real chance’ or ‘real risk’ tests under paragraphs 36(2)(a) & (aa) of the Migration Act 1958 (Cth), or by illogical reasoning which denied the applicant the possibility of a different outcome.

    The main submissions that were made by the Applicant before me centred upon the reasoning that the Full Court of the Federal Court gave in CGA15 v Minister for Home Affairs [2019] FCAFC 46 (“CGA15”). 

44. In that matter, an appellant, who had not met the refugee criteria, was then assessed by the Tribunal that they could go back to Pakistan and be relocated in Islamabad or Rawalpindi.  It is said that the Tribunal in that case was comparing the safety of different areas within Pakistan. 

45. The Court in that case cited, with approval, what Moshinsky J had said in CID15 v Minister for Immigration and Border Protection [2017] FCA 780 where His Honour said:

    In my view, on the true construction of the reasons, the Tribunal was comparing the safety of different areas within Pakistan. Putting the matter simply, the Tribunal’s finding was to the effect that certain urban areas were safer than Kurram Agency, rather than that they were safe. Considering the Tribunal’s reasons as a whole, the Tribunal adopted a relative rather than an objective approach in applying the ‘real chance’ test in the context of the relocation issue. This amounted to a jurisdictional error.

1. In CGA15 (Supra), the Court looked at the reasoning of the Tribunal, more particularly, it looked at paragraph 43 of that Tribunal’s reasoning.  That Court said this at paragraph 40:

   …However, as discussed above, the attacks that have taken place on those occasions is sporadic, and considered in the context of the size of the Shia population which is reportedly approximately one quarter of the population of almost 200 million people, the Tribunal regards the risk of the applicant suffering serious harm on that ground to be remote.  Thus, given the relatively low levels of sectarian violence in Islamabad and Rawalpindi, and the applicant's lack of a particular profile with the Taliban or any of its associated extremist groups, combined with the large number of Shia Muslims in Pakistan and in urban areas, the Tribunal is satisfied that the chance of the applicant being harmed in an act of targeted sectarian or generalised violence in Islamabad or Rawalpindi is remote…

2. The Court in CGA15 (Supra) said that the fundamental problem with the Tribunal’s approach was that it engaged in a statistical analysis of the risk of serious harm that the Applicant would face in Islamabad or Rawalpindi by reference to the Shia population across the whole of Pakistan.  The Tribunal had stated that the Applicant would most likely be at risk because he is a Shia when he attends Shia religious processions or is at a location where large numbers of Shias gather.  It then concluded that having regard to the sporadic nature of the attacks, and considered in the context and size of the Shia population, the risk of the Applicant suffering harm on that ground was remote.

3. The Court said that the problem with that approach includes that the Shia population of Pakistan will incorporate areas with a high proportion of Shias such as Kurram Agency and also areas with a much lower proportion.  Understanding that Shias make up a quarter of the population of Pakistan does not assist in understanding the proportion or number of Shias in Islamabad or Rawalpindi.  There was no evidence before the Tribunal about how many Shias lived in those cities or what proportion Shias comprise of the population of those cities.

4. There was also no evidence as to what proportion of Shias attend the religious festivals and parade nor, indeed, how many Shias attend them.  The Court said that they could not accept that the conclusion that the Applicant would face a remote risk of harm in those cities can reasonably be based on the fact that Shias make up a quarter of Pakistan’s population.  The Court said to reach a conclusion that the Applicant faced a remote risk of serious harm based on such a statistical analysis required the Tribunal to at least engage with questions as to how many Shia live in those cities, what proportion Shias comprise of the population of those cities, how many would attend religious processions, and what the statistical risk of harm those Shias face.

5. The Applicant in this case says that when one looks at what has occurred in CGA15 (Supra), the same errors have been replicated by this particular Tribunal.  The Applicant says that the Tribunal did not have any statistics or information about Gujrat City or Jalalpur Jattan, and the Tribunal acknowledged that. 

6. Yet the Tribunal, in effect, did exactly what the Tribunal in CGA15 (Supra) did, in that it has then, as it were, looked at what occurs to Shias in all of Pakistan, and then said because of the fact that there are other areas in the Punjab where the violence occurs, therefore it must be safe in the area that the Applicant is.

7. What the Tribunal has not done, according to the Applicant in this case, is to actually assess whether it is safe in the city that the Applicant resides in or would reside in, that being Gujrat City or, more specifically, Jalalpur Jattan. 

8. The Applicant relies on what the Tribunal had said at paragraph 85 where it summarised the position as “because the country information is that these other areas are where the violence occurs, it must, therefore, be safer where the Applicant is”.  Whilst that may be true in relative terms, as Moshinsky J spoke of, it is not an objective test and so, in failing to make or to conduct that objective test, the Tribunal has erred.

9. The Minister does not accept that contention.  The Minister points out that CGA15 (Supra) was a relocation case where what the Tribunal had to consider was different to the considerations in the present matter.  In that case, the Tribunal had to consider whether it was safe for that applicant to relocate to another part of the country because his home region was not safe.  The Minister submits that the issues in this matter are quite different. It seems to me, though, that what one must do is to go back and understand what the claim of the Applicant actually was. 

10. His claim is that if he returned to his home in Pakistan, he would be killed or targeted because of his high profile, the same high profile that he had in 2013 that caused him to leave.  He then claimed that he feared going back to Pakistan because he cannot live anywhere else in Pakistan because Shias are treated the same everywhere, and the militants will know where he is because of the family's involvement in the religion, and that he would have no freedom and would be unable to practise his religion, and if he had to go to another area in Pakistan, he would have nowhere to live and no support from his family.

11. The Tribunal had gone through quite a deal of country information, as I have already noted.  The Tribunal specifically noted, at paragraph 70 of its reasons, that the DFAT report, at paragraph 3.106, discussed anti‑Shia violence in the Punjab and stated that sectarian tensions and violence were prevalent in the south and in parts of three particular cities.  It noted that conservative madrasas and militant groups were more prominent in the southern part of the Punjab, and the Sunni and Shia communities tend to be more segregated.

12. It also noted that Shias live throughout the Punjab, including Lahore and that the Sunni and Shia communities in the cities are much more integrated.  In coming to the conclusions that the Tribunal did, it rejected the Applicant’s claim that he had a high profile.  The conclusion that the Tribunal came to was that he would have no real profile because the matters that caused him to have a profile were not matters that were germane to him.  It was his relationship to the activities of his brother and mother that caused the profile.

13. As his brother and mother are no longer involved in those activities, therefore any reason for him to have a profile would be gone, and the fact that there has been quite an effluxion of time between the time of the incidents in 2013 and when the Tribunal came to decide the matter.  Therefore, quite rightly as the Applicant points out, the Tribunal were treating the Applicant as if he were simply a Shia without any particular profile. 

14. In saying what the Tribunal did, at paragraph 85 (that Sunni Muslims were in the majority in the Applicant's home town, and that the DFAT report identified areas in the Punjab where sectarian tensions and violence are more prevalent, but that none of those areas included or bordered in Jalalpur Jattan or Gujrat City), the conclusion that the Tribunal made was not one that, therefore, that the home area of the Applicant was safer than other places.  What the Tribunal was, in effect, doing is looking at what was the violence that was being perpetrated in the Punjab.

15. The evidence that the Tribunal spoke of showed that, in 2018, there were four attacks, and those four attacks killed 20 people; that this was a decrease in the number of attacks and number of fatalities that had occurred in 2017; and, that the violence and tensions occur in the areas that are not where Gujrat City or Jalalpur Jattan are.  It is not, therefore, a conclusion that the area is safer.  It is a conclusion that the area is safe.  That is because the areas where the tensions are, are not in area where the Applicant would be.

16. I accept what the Minister says, that the Tribunal can rely on an absence of evidence. The country information did not refer to that area as being an area where there is sectarian tension or violence or where there had been violence. The information looked at violence in Punjab and that there were four attacks which killed 20 people. Those areas where the violence occurred was not the home area of the Applicant.

17. It seems to me that it is logical, when one is looking at a place where the Applicant would be going, to look at that information and then to come to the conclusion that, therefore, the Applicant did not have a well‑founded fear of being persecuted because of his Shia faith.

18. This is unlike the situation that obtained in CGA15 (Supra) where, in  CGA15 (Supra), there was simply a blanket conclusion that because a quarter of the population were Shia that the sort of matters that would have occurred in Rawalpindi or Islamabad were not matters that amounted to a significant risk to that particular Applicant. 

19. This Tribunal has been far more targeted in looking at what the situation is.  This Tribunal has looked at statistics for all over Pakistan simply because the Applicant said that Shias are in danger all over Pakistan. The Tribunal had a duty to consider what the real risk for Shias are generally in Pakistan.

20. The information and statistics led the Tribunal to conclude that the risk for Shias is lessening as the security situation has improved over the last number of years. 

21. The Tribunal has then looked at, as best it could, what was the situation where the Applicant was.  There may not have been any information specifically about that area, but to look at where the areas of violence were and what was the extent of the violence in the whole of the Punjab was a proper exercise for the Tribunal to undertake.  The undertaking of that exercise and the information gleaned has been able to lead the Tribunal to a conclusion that was open on the evidence and was logical.

22. The Tribunal has, after making that conclusion, then given another finding that the Applicant would be able to subsist and live in Gujrat City because he would have his immediate family, and he would be able to find employment.  It seems to me that that finding was open on the evidence.

23. When one combines all of those matters, it does seem to me that the finding that the Applicant does not have a well-founded fear of being persecuted because of his Shia faith was a logical conclusion which was open on the evidence.  For those reasons, I find that there has not been a jurisdictional error. 

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:     27 May 2020