BFH17 v Minister for Immigration

[2019] FCCA 773

FEDERAL CIRCUIT COURT OF AUSTRALIA

BFH17 & ORS v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 773

Catchwords:
MIGRATION – Application for judicial review – protection visa – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.36(2)

First Applicant: BFH17

Second Applicant: BFI17

Third Applicant: BFJ17

Fourth Applicant: BFK17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 574 of 2017

Judgment of: Judge Riethmuller

Hearing date: 14 February 2019

Delivered at: Melbourne

Delivered on: 1 April 2019

REPRESENTATION

Counsel for the Applicants: Ms Leveine

Solicitors for the Applicants: Victoria Legal Aid

Counsel for the First Respondent: Mr Smyth

Solicitors for the First Respondent: DLA Piper

ORDERS

1. The application be dismissed.

2. The First and Second Applicants pay the costs of the First Respondent fixed in the sum of $6,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 574 of 2017

BFH17

First Applicant

BFI17

Second Applicant

BFJ17

Third Applicant

BFK17

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. The Applicants seek judicial review of a decision of the Administrative Appeals Tribunal (‘the AAT’) to affirm the delegate’s decision not to grant a Protection (Class XA) visa on 4 November 2013. The First Applicant (‘the Applicant’) is the primary Applicant for the protection visa, with the remaining three Applicants being his wife and two children. 

2. The Applicants arrived in Australia on 22 April 2010 from Pakistan. At that time, the Second Applicant (‘the wife’) held a student visa and the other Applicants were dependents. The Applicants subsequently applied for a protection visa on 4 November 2013, based upon the risks that it is claimed the First Applicant faces in Pakistan.

3. On 10 July 2015, a delegate of the First Respondent refused the visa application. The delegate acknowledged that extremists were targeting ordinary Shia Muslims within Pakistan, however, found that the Applicant could safely and reasonably relocate to Islamabad or parts of Punjab province.

4. On 22 July 2015 the Applicants applied to the AAT for a review of the delegate’s decision. The Applicants provided additional supporting documents on 12 October 2016 claiming that the Applicant also feared harm by reason of his actual or imputed political opinion against the Taliban, Sunni extremist groups, and Sunni extremist sympathisers as a result of his religious activities and associations and his work as a volunteer with a polio vaccination program.

5. The Applicants were invited to attend before the Tribunal for a hearing, which the First Applicant accepted. He gave evidence and presented arguments on 14 October 2016 with the assistance of an interpreter.  Throughout the process, the Applicants were represented by their registered migration agent, who also attended the Tribunal hearing.

6. On 23 February, the Tribunal refused the application of the Applicants. 

The Tribunal’s findings

1. The Tribunal accepted that the Applicants came from Pakistan and that their identities were as they claimed them to be.  The Tribunal also accepted that the Applicant is a Shia Muslim who has qualifications in nursing and had worked as a nurse in Karachi, Pakistan before coming to Australia in September 2010.

2. The Tribunal accepted that the Applicant’s father and uncle were active in the local Shia community but found that they did not have a public profile which extended beyond or outside that community;  therefore the AAT was of the view that they were not “high profile” Shias: see Statement of Decision and Reasons (‘Decision Record’) paragraph 26.

3. At paragraph 27 of its decision, the Tribunal accepted that the Applicant became well-known in his local community because of his involvement with an academy and his social worker and religious activities within the Shia community.  However, the Tribunal found that the Applicant, like the Tribunal’s findings with respect to his father, did not have a high profile or a public profile that extended beyond his local Shia community.  The only public information with respect to the academy the Applicant said he had founded and was the chairman of, was a Facebook page which the Applicant drew the delegate’s attention to in 2014. 

4. The Applicant also said that he had been involved in a group called a Majlis-e-Wahdat-ul-Muslimeen (‘MWM’), which was an organisation actively involved in organising religious gatherings, access to medical treatment and services for impoverished Shia Muslims. The Tribunal noted that country information indicated that MWM is a relatively new moderate Shia political group, which announced in 2013 it was planning to contest elections.  The Tribunal accepted that the Applicant was involved in this group but that his involvement did not give rise to any public profile as a political activist. In reaching this finding the Tribunal also gave weight to the Applicant’s comment in his statutory declaration that the main reason his life is at risk now is because of the school he and his brother established and his ongoing role in running the school.

5. The Tribunal accepted that the Applicant and his brothers set up two schools, the first in 2004 and the second in 2009:  see Decision Record paragraph 28.  The Tribunal concluded that his principal role in the schools was in administration rather than teaching. The Tribunal examined these claims in detail, noting in particular that the Applicant had not taken up an opportunity to come to Australia on a student visa at a time when he said he was at risk of harm, and that later his wife and son returned to Pakistan for two months in June 2012.

6. Ultimately, the Tribunal did not accept that the Applicant was targeted or faced real risk in this regard.

7. The Tribunal accepted that the Applicant’s cousin had been killed, although it appears that it was his father’s cousin, not his own cousin, but nonetheless, it was accepted by the Tribunal that the person killed was related to the Applicant.  The Tribunal did not accept that this person taught regularly at the schools.

8. The last section of paragraph 33 of the Tribunal’s reasons sets out their findings in this regard, where the Tribunal says:-

   …Given that any involvement of the victim with the applicant's madrassa was only a minor part of his activities the Tribunal does not accept the applicant's claim that the victim was warned by LeJ to cease teaching at the madrassa and does not accept that this person's death was due to any involvement with the applicant's madrassas. While the Tribunal accepts that this may have been a sectarian killing, given the applicant's description of the victim as a type of priest, the victim's employment in a 'private company' rather than at the applicant's madrassa, and the victim's involvement with the Shia Ulema Council, the Tribunal finds that the killing of the victim does not indicate that the applicant would be similarly targeted.

9. The Tribunal did not accept that the Applicant faced a real risk of serious harm because of his occasional activities as a volunteer in the polio vaccination program: see Decision Record paragraph 34.  Similarly, the Tribunal did not accept that there is a real risk of serious harm as a result of him being identified as a Syed Shia Muslim.

10. The Applicant’s claims to risk of harm from anti-Shia and militant groups are discussed at length at paragraphs 38 to 52, wherein the Tribunal does not accept the Applicant’s claims. 

Grounds of application

1. The Applicant, in his amended application, relies upon two grounds. 

Ground 1

1. The first ground that the Applicant relies upon is framed as follows:-

   The Tribunal applied the wrong test and/or asked itself the wrong question in assessing whether the First Applicant (the Applicant) faced a “real chance” of persecution from extremists in Pakistan as a Shia Muslim generally.

   Particulars

   The Tribunal concluded that the Applicant did not face a real chance of harm as a Shia Muslim generally on the basis that the risk of harm was “low” and there was a “significant and sustained improvement” in the security situation in Pakistan, including in Karachi, rather than asking whether the risk of harm faced by the Applicant was more than remote.

2. The Applicant’s argument under this ground is based upon the Tribunal’s assessments of the risks of harm in Karachi. The Tribunal concluded in a number of passages that there is improved security (see paragraphs 40, 46 and 48 of the Decision Record), and that the various risks of sectarian violence were “low level” or “relatively low” (see paragraphs 41 and 42 of the Decision Record). 

3. It is argued by the Applicant that it was on the basis of the Tribunal’s findings of improvements in the security situation and low risks of sectarian violence that the Tribunal concluded that the Applicant did not face a real chance of harm on the basis of being a Shia Muslim generally.

4. The Applicant argues that as a result, the Tribunal should be taken to have asked itself an incorrect question, namely, whether the risk was high or low, rather than whether or not there was a real chance that the applicant would suffer serious harm.

5. Counsel for the First Respondent pointed out that the Tribunal commenced with an appropriate statement of the test at paragraph 20 of the Decision Record before commencing a careful review of the facts and circumstances in this case.  After carefully reviewing the Applicant’s circumstances, the Tribunal member turns to consideration of risks of serious harm, under a heading using those words (above paragraph 38 of the Decision Record).

6. At the commencement of paragraph 40 of the Decision Record, the Tribunal correctly set out the test, saying:-

   In considering whether the applicant faces a real risk of persecution amounting to serious harm should he return to Pakistan the Tribunal has carefully considered the applicant's evidence regarding his personal circumstances, the killing of his father's cousin in 2013, and relevant country information regarding the current situation in relation to both sectarian and generalised violence in Pakistan. In discussing these matters with the applicant at the hearing, the Tribunal explained that while the delegate had found that the applicant faced a real chance of persecution should he return to Karachi, but considered that the applicant could reasonably relocate to Islamabad where he would be safe, the Tribunal did not necessarily agree with the delegate's finding in relation to Karachi, in light of current country information indicating an improved security situation since 2014, and would be considering all matters afresh...

   The Tribunal then goes on to assess the various risks and the seriousness of them, before turning to the Applicant’s personal profile in the context of the circumstances in Pakistan as described on the country information.

7. At paragraph 46 of the Decision Record, the Tribunal again restates the test, although using the word “significant” with respect to harm rather than the word “serious”, saying:

   Given the SATP country information for 2016, and the country information more broadly which shows a significant and sustained improvement in the security situation in Pakistan since 2014, including in Karachi where the paramilitary Rangers operations have been ongoing, the Tribunal concludes that the applicant would not face a real chance of suffering persecution amounting to significant harm as a consequence of, either individually or cumulatively, his Shia Muslim religion and/or an actual or imputed political opinion of opposition to the TTP and other Sunni extremist groups and their sympathisers on account of his religious, political and community activities and associations within the Shia community, including his founding and running of the Zain ul Aabideen Academy and the Imam-e-Zamana Academy, because his name readily identifies him as a Syed Shia, his relationship to his father and now deceased uncle; and because of his work as a volunteer polio vaccinator.

8. I am not persuaded that the use of the word “significant” rather than “serious” in this context indicates that the Tribunal were applying the wrong test, given that the two words in this context have very similar meanings.

9. Again, at paragraph 52, the Tribunal sets out the test, saying:-

   Considering the applicant's claims both individually and cumulatively, the Tribunal concludes that he does not have a well-founded fear of persecution from Sunni extremist groups including the TPP, SSP, LeJ, and ASWJ and/or their sympathisers due to his Shia Muslim religion and/or an actual or imputed political opinion of opposition to the UP and other Sunni extremist groups and their sympathisers on account of his religious, political and community activities and associations within the Shia community, including his founding and running of the Zain ul Aabideen Academy and the Imam-e-Zamana Academy, because his name readily identifies him as a Syed Shia, his relationship to his father and now deceased uncle; and because of his work as a volunteer polio vaccinator, or for any other Convention reason, if he returned to Pakistan now or in the reasonably foreseeable future. The Tribunal is therefore not satisfied the applicant is a person to whom Australia owes protection obligations under the Refugees Convention. This means he does not satisfy the refugee criterion in s.36(2)(a).

10. I am not persuaded that the Tribunal ultimately applied the incorrect test. The Applicant’s arguments fix upon the Tribunal’s discussion and assessment of the evidence and the various risks the evidence disclosed, which were intermediate fact-finding steps, properly undertaken by the Tribunal in the process towards applying the test required by the legislation. In the circumstances, I therefore find that this ground has not been established.

Ground 2

1. Ground 2 was framed as follows:

   The Tribunal failed properly to consider the Applicant's claim or integer of a claim that he would be at risk of harm in Pakistan by reason of having a similar profile to a cousin who had been killed in Pakistan for reasons related to his Shia Muslim religion.

   Particulars

   (a) The Applicant claimed that his cousin had been ldlled because he was engaged in the same kind of activities as the Applicant, including being involved in the activities of an organisation called Majlis-e-Wahdat-ul-Muslimeen (‘MWM’).

   (b) The Tribunal accepted that the Applicant had been involved with MWM.

   (c) The Tribunal accepted that the Applicant's cousin may have been the victim of a sectarian killing.

   (d) The Tribunal failed adequately to consider the Applicant’s claim that the similarities in his and his cousin’s profiles which exposed him to a risk of harm included the fact that they were both involved in the activities of MWM.

2. Whilst ground 2 is framed as an integer claim, on the basis that the Tribunal did not turn to consider this aspect of the Applicant’s claim, it is clear that the Tribunal accepted that the Applicant was involved with the MWM (see paragraph 27 of the Decision Record), and that the Applicant’s cousin (or relative) may have been the victim of sectarian killing (see paragraph 33 of the Decision Record). The Tribunal did not accept that the Applicant was likely to be similarly targeted. The findings of the Tribunal in this respect are extensive. At paragraph 27 of the Decision Record, the Tribunal said:

   The Tribunal accepts that the applicant became well-known in his local Shia community because of his involvement with the Zain ul Aabideen Academy and also because he undertook other social work and religious activities within the Shia community, similar to his father. In this regard the Tribunal has noted the references provided by the applicant, including those indicating that he continues to be involved in Shia community activities in Australia. However, the Tribunal finds that the applicant, like his father, does not have a high profile or a public profile that extends outside of his local Shia community. In this regard the Tribunal finds that the only public reference to the madrassas the applicant claims to have founded and to be the chairman of is the Zain ul Aabideen Academy Facebook page which the applicant drew the delegate's attention to when she interviewed him on 26 August 2014. At the hearing and in his statutory declaration of 10 October 2016 the applicant also commented that he had been involved with MWM (Majlis-e-Wahdat-ul-Muslimeen). In his statement he indicated that he was a member of this organisation and actively involved in organising majalis (religious gatherings), social activities like camping, and access to medical treatment and services for impoverished Shia Muslims. Country information indicates that MWM is a relatively new moderate Shia political group which in 2013 announced it was planning to contest the 2013 elections. The Tribunal accepts that the applicant was involved with this group in the way he describes and that generally he was involved in various voluntary activities and organisations aimed at assisting Shia Muslims and promoting the Shia Muslim faith, but finds that this level of involvement did not give rise to any public profile as a political activist. In this regard the Tribunal also gives weight to the applicant's comment in his statutory declaration of 10 October 2016 that the main reason his life is at risk now is because of the Shia madrassas he and his brother established and his ongoing role in running those schools.

3. The relevant passage from paragraph 33 is set out above, which is at the end of an excessively long paragraph traversing the details of the claims relating to the Applicant’s family member. 

4. Ultimately, the Tribunal said:

   [43]. The applicant submits that that the risk he faces is elevated because of his founding and running of a Shia madrassa; his active involvement in volunteer activities and organisations aimed at assisting Shias and promoting their faith; his profile as a Syed Shia; and his family links to his father and uncle who are respected Shia scholars; and his status as a volunteer polio vaccinator. The applicant points to the killing of his father's cousin in February 2013 as being indicative of the risk he faces, as he claims his profile is similar to that of his father’s cousin.

   [44]. As discussed above, the Tribunal does not consider that the applicant's circumstances are comparable to those of his father's cousin. The Tribunal also notes that this killing occurred nearly four years ago, and gives weight to the significant improvement in the security situation in Karachi and Pakistan generally since that time. The Tribunal does not accept that the killing of the applicant's father's cousin in February 2013 indicates that there is a real chance that the applicant will be targeted in a similar fashion should he return to Pakistan now or in the foreseeable future.

5. It is apparent that the Tribunal has clearly considered this integer of the Applicant’s claim, namely, that he was at risk by reason of having similar profile to his family member who had been killed.  This is expressly addressed at paragraph 44.

Conclusion

1. In substance, it appears that the Applicant’s arguments on both grounds are seeking to engage in merits review and ought to be rejected.  As I have not found either ground established, it is appropriate that I make orders dismissing the application.

2. At the hearing of the matter, it was agreed that costs would follow the event, and that if the Minister was successful, the Minister’s costs would reasonably be fixed at $6,500. I therefore make costs orders in these terms against the first and second Applicants (the husband and the wife) as the third and fourth Applicants are minors, whose cases succeeded or failed on the outcome of their father’s case.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate:  

Date:  1 April 2019