COY19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FCA 352
•6 April 2022
FEDERAL COURT OF AUSTRALIA
COY19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 352
Appeal from: COY19 & Anor v Minister for Immigration & Anor [2020] FCCA 429 File number(s): NSD 290 of 2020 Judgment of: GREENWOOD J Date of judgment: 6 April 2022 Catchwords: MIGRATION – consideration of whether the decision‑maker failed to comply with the “rules of reason” in reaching a conclusion that the “chance” of the appellants suffering “significant harm” should they return to Pakistan was “remote” – consideration of whether the relevant reason for a fear of harm for the purposes of s 5J(1)(a) and s 5J(4) was the “essential and significant reason” – consideration of the integers relevant to s 36(2)(a) and s 36(2)(aa) of the Migration Act 1958 (Cth) and their application to the facts as found Legislation: Migration Act 1958 (Cth), ss 5J, 36(2)(a), 36(2)(aa), 65 Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 82 Date of last submission/s: 23 September 2020 Date of hearing: 4 November 2020 Counsel for the Appellants: Mr P Reynolds Counsel for the First Respondent: Mr G Johnson Solicitor for the First Respondent: Australian Government Solicitor ORDERS
NSD 290 of 2020 BETWEEN: COY19
First Appellant
CPA19
Second Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
GREENWOOD J
DATE OF ORDER:
6 APRIL 2022
THE COURT ORDERS THAT:
1.The appeal is allowed.
2.The orders made by the Federal Circuit Court of Australia (as that Court was then known) be set aside and, in place of those orders, the following orders be made:
(a)an order that the decision of the second respondent dated 11 June 2019 affirming a decision of a delegate of the first respondent not to grant the appellants’ protection visas (the “Tribunal decision”) be set aside;
(b)a writ of mandamus be directed to the second respondent requiring it to determine the applicants’ application for protection visas according to law;
(c)the first respondent pay the applicants’ costs of and incidental to the proceedings below.
3.The first respondent pay the appellants’ costs of and incidental to the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
GREENWOOD J:
These proceedings are concerned with an appeal from a decision of the Federal Circuit Court of Australia (now known as the Federal Circuit and Family Court of Australia (Division 2)) dismissing an application for the grant of the constitutional writs in relation to a decision of the Administrative Appeals Tribunal (the “Tribunal”) affirming a decision of the Minister’s delegate not to grant the appellants a protection visa under the provisions of the Migration Act 1958 (Cth) (the “Act”).
The first appellant, COY19, is the daughter of the second appellant, CPA19, her mother. The appellants are citizens and nationals of Pakistan, as accepted by the Tribunal. They arrived in Australia on 4 March 2015 and applied for protection visa on 27 March 2015. The brother and son, respectively, of the appellants, no longer lives in Pakistan. The appellants, prior to arrival in Australia, had been living alone in Pakistan in Karachi. The father and husband, respectively, of the first and second appellants, died in 2004.
The appellants applied for protection visas under s 65 of the Act in reliance upon s 36(2)(a) and s 36(2)(aa) of the Act. In summary, they made the following claims.
Following the death of the father and husband, the appellants lived alone in Karachi in Pakistan. They claimed to face persecution in Pakistan because of their association with the Muttahida Quami Movement (“MQM”) arising out of three particular circumstances: first, their relationship with the father and the brother of the first appellant (and the son of the second appellant, the “brother”) and also with an uncle of the first appellant (the “uncle”) all of whom were established members of the MQM; second, the MQM activities of the first appellant daughter in Pakistan; and third, the daughters MQM activities in Australia.
They also claimed to fear serious harm both psychological and physical from people approaching them at their home and at their “marriage hall business” seeking to extort money from them and in the process of doing so, making threats of harm. This conduct commenced after the death of the father/husband of the appellants, respectively. They claimed that the extortion conduct and threats of harm occurred because they were two women living together but otherwise alone and women living alone with no family or support networks to protect them. They claimed that on leaving Pakistan and arriving in Australia their business was destroyed and their property taken. They claimed to fear harm should they return to Pakistan, as women are not adequately protected in Pakistan.
As to these claims, the Tribunal accepted at [71] that the MQM has been a major political force in Karachi since the mid‑1980s when it formally launched itself as a political party to represent the interests of Muslim Urdu‑speaking migrants originally from India and their descendants. The Tribunal observed at [71] that the MQM had been involved in conflicts (including violent conflicts) with various political parties in Karachi for decades. Some high ranking MQM members had been killed in targeted assassinations. In 2013, a group called the “Rangers” commenced operations in Karachi to reduce political violence which impacted upon the MQM.
At [71], the Tribunal notes that in 2016 hundreds of MQM members were apprehended during operations designed to counter alleged violence and extortion activity in Karachi.
At [73], the Tribunal accepts that various family members of the appellants including the father, the brother and the uncle were actively associated with a group called the “MQM London group” and that family members of the appellants had been granted asylum in the United Kingdom (UK) and the United States of America (USA) although the protection grounds were not clear to the Tribunal.
At [77], the Tribunal accepts that the first appellant (daughter) was a supporter of the MQM London group in Karachi although the Tribunal did not accept that she was “actively involved” in the party or a member of MQM in Karachi.
At [78], the Tribunal accepts that in 2015 the first appellant joined the MQM London group’s women’s wing in Australia and participated in one political protest in Canberra and attended some women’s wing activities in Melbourne.
At [79], the Tribunal accepts that the second appellant (mother) was a sympathiser of the MQM London group faction in Pakistan and that she “went along” to listen to MQM speeches when her husband was alive.
At [80], the Tribunal observes that it does not accept the claims of the appellants that they had been persecuted continuously from 2010 to 2015 at their home by MQM members (Altaf Hussain’s London group faction or others), or by military and para‑military groups, namely, the “Rangers”. From [81] to [87], the Tribunal sets out its reasoning as to that matter.
At [81], the Tribunal observes that the evidence of the appellants as to who was extorting and harassing them over a lengthy period of time is not “clear or convincing”. The Tribunal notes that the daughter was not “sure” whether the people were from their own MQM faction or another party. The Tribunal observes that sometimes she thought it was people in the uniform of the Rangers who came, although this was not said to the delegate by the first appellant. The Tribunal notes that the second appellant (mother) provided “little more clarity” on the subject and nor did she mention the “Rangers” to the delegate.
At [82], the Tribunal did not accept that persons from any grouping would have kept coming to the home of the appellants, at least fortnightly, for five years as claimed.
At [83], the Tribunal notes that the daughter had said that on one occasion when perpetrators came to the home she was pushed and had her scarf snatched and on another occasion her hair had been pulled. The mother gave evidence that sometimes the people touched her daughter when demanding money. The Tribunal notes that in the interview with the delegate, the daughter had said that perpetrators merely threatened her mother by saying that they would harm the daughter. The failure to mention to the delegate these references about pushing, snatching a scarf on one occasion and pulling the daughter’s hair on another occasion, led the Tribunal to conclude that the appellants had “exaggerated their claims of physical harassment following the negative decision of the delegate”.
At [84], the Tribunal notes a difference between the written claims and the oral evidence of the daughter about whether the appellants had changed their address to avoid trouble and threats, and observes that the fact that they were prepared to remain living in their home for the five year period of the events in issue is “problematic”.
At [86], the Tribunal observes that it has considered the evidence of the appellants but is not persuaded that the Rangers were involved in the extortion attempts that the appellants encountered in Karachi. The Tribunal observes that until the Tribunal proceeding commenced, no mention had been made of the involvement of the Rangers in the extortion attempts and given the “notoriously heavy handed” approach of the Rangers in operations in Karachi, the Tribunal considered that their involvement would have been mentioned in the written claims “had that been the case”.
At [87], the Tribunal observes that for these reasons (described above) it is not persuaded that the appellants were continuously harassed for money (or information about the brother/son of the appellants, respectively). As to the s 36(2)(a) question of whether there was a real chance of the appellants suffering serious harm from MQM members or the Rangers, the Tribunal concluded at [93] that the chance of harm to the appellants because of their MQM links was “remote”.
At [94], the Tribunal considered that the chance of the daughter participating in events organised by the MQM London group on return to Karachi, and thereby attracting adverse attention from the Rangers, was remote. The Tribunal considered that because of the age of the second appellant, she would not engage in any public support for the MQM if she returned to Karachi.
At the date of the Tribunal’s decision, the daughter was aged 36 and the mother was aged 74.
At [95], the Tribunal observes that there is no suggestion that the appellants or the brother were linked to any MQM London group‑related political violence in Karachi and at [96], it observes that nor would the appellants be threatened or harassed over the whereabouts of the brother. The Tribunal then further considered the extortion claims in the context of the claimed fear of harm as single women living alone in Karachi. At [98], the Tribunal notes that the appellants claim that they “feel unsafe” as women “living alone in Karachi with nobody to protect them”. At [99], the Tribunal accepts that the appellants were living alone in Karachi prior to their arrival in Australia and that they have no remaining close relatives in Pakistan. At [88], the Tribunal had noted the claim that the manager of the appellants’ marriage hall business had paid money to extortionists on a few occasions. The Tribunal observes at [88] that it is willing to believe that claim “given it is reported that protection rackets have long existed as a widespread practice in Karachi and that a wide range of businesses in Karachi are affected by extortion”. The Tribunal then observes at [88], after having addressed the matters at [81] to [87] (as just described), that “given this reporting, and for the reasons outlined above, the Tribunal finds that any payments made were in relation to extortion attempts on the business rather than on the applicants themselves” [emphasis added].
At [89], the Tribunal accepts that a marriage hall business (conducted in a particular building) described as “Moon Soon Marriage Lawn” had been “demolished” and was “in ruins”, but did not accept that the state of the business and the building was a result of actions taken by the Rangers or groups politically opposed to the family of the appellants.
At [92], the Tribunal observes that as to the claimed extortion, it did not accept that the appellants were continuously harassed and extorted at their home in Karachi prior to departing Pakistan. At [92], the Tribunal notes that it has accepted that the marriage hall business was affected by some extortion, and based on country information, the Tribunal did not “discount the possibility that criminal elements in the MQM could have been involved”. The Tribunal then observes:
However, this business is now no longer operational and therefore further attempts to obtain money through extortion would appear to be fruitless. In the circumstances, the Tribunal considers the chance of any further extortion attempts to be remote. …
[emphasis added]
As to the particular social group claim, the Tribunal at [99], notes the claims of fear of harm as women living alone who had experienced attempts to extort money from them, but notes that the claim of extortion had not been accepted by the Tribunal. As to the experiences of women living alone, the Tribunal notes at [99] the evidence of the daughter that snatching and kidnappings can sometimes occur but normally women can walk around without being touched or harassed on the street, and the Tribunal notes at [99] that although the mother gave evidence that “she has no rights as a woman in Pakistan”, her evidence was that apart from the harassment claim due to extortion attempts, “nothing else had happened to them”.
At [100], the Tribunal accepts (based on a Department of Foreign Affairs and Trade (“DFAT”) Report concerning Pakistan dated 20 February 2019 (the “DFAT Report”)) that many women in Pakistan live separately from men and “face significant cultural and legal barriers to access basic rights, freedom and protection” and whilst women participate actively in society in large urban centres like Karachi, these barriers are more acute outside the urban areas.
At [101], the Tribunal notes that the father died in 2004 and the appellants had lived alone together in Karachi from then until 2015 when they left for Australia. The Tribunal then observes:
Other than the claimed past harm which the Tribunal rejects, with the exception of some extortion attempts on their business, neither of the applicants have claimed any past harm on account of being women or single women living alone in Karachi. Neither did they articulate any specific fears about returning to Karachi for this reason alone.
[emphasis added]
At [102], the Tribunal notes that the daughter had actively engaged in Karachi society by obtaining a University degree and working as a manager for five years before departing Pakistan in 2015 and notes that she agreed with the assessment in the DFAT Report and had said in evidence in the hearing that other than the claimed matters, she had not experienced other problems living in Karachi.
At [103], the Tribunal notes that the police and the Rangers have “arrested large numbers of people allegedly involved in kidnaps, robbery and extortion in Karachi in recent years” and at [104], the Tribunal observes:
In view of the above country information and the applicants’ reported experiences and assessment of the situation, the Tribunal is not satisfied that there is sufficient information in their particular circumstances to conclude that there is a real chance they will suffer serious harm on return to Karachi purely for reason of being women, or single women living alone.
[emphasis added]
At [110], the Tribunal observes that having considered the claims and evidence, both individually and cumulatively, and for all the reasons (just described), it was not satisfied that the appellants are persons in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
As to complementary protection, the Tribunal said this at [111] as to s 36(2)(aa) of the Act:
Having concluded that the applicants do not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s 36(2)(aa) of the Act. On the basis of the above findings the Tribunal is also not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to Pakistan there is a real risk that they will suffer significant harm. Therefore, the applicants are not persons in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
[emphasis added]
The grounds of appeal
Against the background of those findings and the reasoning of the Tribunal, I propose to examine each of the grounds of appeal. The Minister supports the correctness of the conclusions reached by the primary judge on each of the matters discussed in addressing the grounds of appeal. I propose to focus on the contended errors and determine and explain whether the contended errors are made out. Ground 1 of the appeal is that the primary judge erred by failing to find jurisdictional error on the part of the Tribunal in misconstruing or failing to consider a claim or a component integer of a claim before it.
The appellants contend that the Tribunal was required to “correctly construe” and “consider” claims and component integers of claims “expressly raised” and thus “squarely raised” by the material including those claims and integers emerging from its own findings and conclusions. They say that they had claimed to fear persecution as women in circumstances where they were single women who lived alone or single women living alone with no family or support network in Pakistan (Karachi). The relevant component integers of such claims were: (a) contentions that whilst living in Pakistan in such circumstances, strangers had targeted them as persons in those circumstances for extortion and harassment, ultimately leading to the destruction of their property and the marriage hall business; and (b) they had feared psychological and physical harm at the hands of strangers for that reason.
The contention is that the Tribunal failed to address those integers of the claimed fear.
The appellants say that the claim so made is most clearly evident in the post‑hearing submission put to the Tribunal by MIC Lawyers on behalf of the appellants dated 15 May 2019 in these terms, as to what would happen if the appellants were to return to Pakistan:
[COY19, the daughter] says that she risks serious harm, both psychological and physical and possibly death at the hands of strangers who have been bothering her and her mother, if she returns to Pakistan. She says that since her departure, their house has been damaged, the marriage hall where the family business operated had been levelled to the ground. She says in the circumstances she is not sure of anything except that her family has been targeted viciously and that such threats will continue to happen in the future. She says she feels unsafe as a woman, and with no family and support networks to look into their welfare and safety in Pakistan. She says her mother [CPA19] is elderly, and has health complications. She further [highlights] that her other relatives have fled the country and are domicile elsewhere such [as] England and America.
[emphasis added]
Apart from this reference, the appellants note that such a claim was made by the daughter in her protection visa application (AB 58, point 10) in these terms:
My mother and I live in Pakistan alone. We have been facing a lot of problems because my father and brother both were involved in MQM party. My father has now expired. When my father was alive he was able to look after us. Now my brother supports us [but he is in Sydney]. Many people were troubling us.
[emphasis added]
The mother made the same claim in her visa application document (AB 117, point 9). In a document described as a summary of an interview with the first appellant daughter on 11 August 2015, the daughter was asked to describe the “sort of problems” she had experienced in Pakistan. Aspects of the description she gave set out demands made of them as two ladies living in the home; that they were not getting threats when her father was alive; and the problem has become worse day by day. She says that people came to the door asking for money. She says that “[t]hey harass us … they abuse us”; “they are not literate … they tell her mother that they will kidnap and kill her daughter [the text of the statement made by the Urdu interpreter]”; “they come again and again and knock the door and abuse you. They know there are two ladies in the home”. In the interview with the mother, she describes quite extensively people coming to the door, her daughter telling her not to open the door, the daughter dealing with the callers and their demands for money.
On 27 February 2019, MIC Lawyers lodged a submission with the Tribunal on behalf of the mother which included these matters:
She says that she was continuously harassed, threatened during the said period. She says groups of men often came to her house demanding ransom money. She says that they threatened her and her daughter, to pay the money or face consequences. She says she felt fearful, as only she and her daughter lived at home as her husband was deceased and her son was in Australia. She says that she also has health conditions that made her more vulnerable. She often would have panic attacks in anticipation of the return of these groups to threaten her and her daughter.
Amnesty International Reports 2016/2017, 2015/2016 … indicate the rise of violence against women, in acts of rape, sodomy, domestic violence and kidnappings.
The Human Rights Watch Report 2016 reports that the military and the Rangers, were given complete control over Karachi, with regard to law enforcement. It says that there were extra judicial killings, torture, and disappearances. The report also highlights the plight of women, who were not adequately protected. There was more violence against women including rape, honour killings, acid attacks.
[emphasis added]
The Amnesty International Report 2015/2016 (AB 312) reports as follows:
VIOLENCE AGAINST WOMEN AND GIRLS
Women and girls continued to face violation and threats. At least 4,308 cases of violence against women and girls were reported for the first six months of 2015. The figure included 709 cases of murder; 596 of rape and gang rape; 36 of sexual assault; 186 of so‑called “honour” crimes; and 1,020 of kidnapping. Despite the enactment of the Acid Control and Acid Crime Prevention Act … at least 40 acid attack cases were recorded between January and June.
In Sahwai a number of knife attacks were reported against women seen outside their homes without a male companion. Up to six cases were reported in one week in September. …
The Amnesty International Report 2016/2017 reports that the Human Rights Commission of Pakistan recorded almost 3,000 cases of violence against women and girls including the range of offences described in the 2015/2016 Report. In a document described as the “Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment” (United Nations) published on 1 June 2017 under the reference “CAT/C/PAK/CO/1”, the following observations (at AB 330‑AB 331) are made in relation to Pakistan as a State party:
Violence against women and so‑called “honour” killings
30.While noting the adoption of the Anti‑Rape Laws (Criminal Amendment Bill), 2016 and the Anti‑Honour Killing Law (Criminal Amendment Bill) and the State party’s commitment to address these crimes, the Committee is concerned about the reported very high level of violence against women in the State party [Pakistan], which includes murder, rape, acid crimes, kidnappings and domestic violence; and “honour killings”. It is also concerned about very low conviction rates for these crimes …
At para 31 of the above Report, the Committee urges the State party to intensify efforts to prevent, combat and eradicate all forms of violence against women, including by strengthening legal provisions in national and provincial legislation that address and criminalise violence against women and to ensure that all cases of violence against women are thoroughly, effectively and promptly investigated and that perpetrators are prosecuted and convicted with penalties commensurate with the gravity of the crime. The Committee also recommended introducing a guarantee in practice that women who are victims of violence have immediate access to legal remedies and ensure that they are able to access effective protection including shelters, medical care and psychological support.
The “Pakistan 2017 Human Rights Report” (Country Report on Human Rights Practices for 2017, United States Department of State, Bureau of Democracy, Human Rights and Labour (the “USDOS Report”)) sets out (at AB 371 to AB 376) a lengthy discussion of the abuses faced by women in Pakistan and the responses of government and government authorities to the problem. The problem of violence, rape and abuse faced by women in Pakistan as described at these pages of the USDOS Report, is profound.
The contended error on the part of the Tribunal is said to have four components.
First, the appellants accept that the Tribunal considered the claim that they faced a real chance of serious harm from MQM members or the military or para‑military groups or the Rangers, but they say that the claim was not limited to those cohorts. They say that a component integer was a claim that they faced a real chance of serious harm from strangers. At [62], the Tribunal notes the claim (by commencing with the remarks of the daughter and then the comments of the mother) in these terms:
Post hearing submissions [17 May 2019]
62.[The daughter] risks serious harm, both psychological and physical and possibly death at the hands of strangers who have been bothering her and her mother. Since her departure their house has been damaged, the marriage hall levelled to the ground. Such threats will continue to happen in the future and she feels unsafe as a woman, with no family and support networks to look after her welfare and security in Pakistan. Her mother is elderly and has health complications and her other relatives have fled the country. They were granted protection in other countries due to the accelerating threat levelled against their faction of the MQM.
It seems reasonably clear from the reasons of the Tribunal taken as a whole that the Tribunal proceeded on the basis that this threat or fear of harm from strangers was treated as a fear of harm for reasons of a perceived relationship with family members/relations who had an association with MQM in one way or another. The appellants contend that the claim noted at [62] of the Tribunal’s reasons was not so limited and although the primary judge noted at [55] of the judgment that the Tribunal had recognised the claim (not said to be expressly tied to reasons of a relationship to persons connected to the MQM, military groups, para‑military groups or the Rangers and thus a separate and distinct matter), the appellants contend that the Tribunal did not consider the claim as put.
At [91] to [97], the Tribunal considers whether the appellants faced a real chance of serious harm due to their families affiliation to the MQM London group or other MQM groups or factions within MQM (such as rival MQM members), or military or para‑military groups. All of the reasoning addresses the relationship between a real chance of serious harm and the affiliations of the appellants to family members who are or were MQM members. The fear of harm from “strangers” who had been “bothering” the appellants as claimed and noted at [62] of the Tribunal’s decision, as two women living together but otherwise alone without support was not expressly considered at [91] to [97].
The primary judge observed at [56] in the context of the contended failure of the Tribunal to address that claim, that the Tribunal had made adverse findings which were open to it about the claims of continuous harassment “by reason of” family affiliations with the MQM and as single women living alone in Karachi. At [57], the primary judge observed that to the extent that the Tribunal did not “make a finding dispositive” of the claim to fear serious harm from strangers, the disposition of that claim was to be found in and “subsumed” within the Tribunal’s adverse finding at [104] “as the Tribunal had already referred to that submission” at [62] of the decision.
The question the Tribunal was addressing at [98] to [103] of its decision was the extent to which it could be satisfied of a “real chance” of “serious harm” from either MQM members or military groups or para‑military groups such as the Rangers, should the appellants return to Pakistan (Karachi). The Tribunal was not there addressing a real chance of serious harm from strangers in the terms at [62] of the Tribunal’s decision. The finding at [104] comes at the end of the discussion of the question comprehended by [98] to [103]. The Tribunal is not seeking to address or subsume the [62] claim within a conclusion to an entirely different question at [104], fairly read.
As to the factual findings going to a claim of fear from persons, strangers, demanding money from the appellants as women living alone without protection and thus vulnerable to such claims, the Tribunal found that claims of systematic and regular extortion were “exaggerated” but accepted that extortion was wide‑spread in Karachi, that the marriage hall business had been destroyed (by some persons); that the “business” had been subjected to extortion demands (by some persons); and that women (in the position of the appellants) face a high level of official discrimination in the form of ineffective enforcement of existing laws and violations of their rights.
The appellants contend that the claim of a real chance of future serious harm from strangers making extortion demands of the kind accepted as having been made on the business previously ought to have been addressed. In one sense (and this is the second of the four components mentioned at [42] of these reasons) it was addressed in a conclusionary and determinative way by the Tribunal that does not sit in conformity with the “rules of reason” governing decision‑making by the repository of the power.
At [92], the Tribunal concluded that because “this business is now no longer operational” (having been destroyed by someone and the building demolished by someone, all of which occurred after extortion demands were made upon and of the business), it followed (by the use of the words “and therefore”) that further attempts to obtain money through extortion (from the then non‑existent business) “would appear to be fruitless”: see [23] of these reasons. It followed, therefore, for the Tribunal at [92] that in those circumstances, the “chance” of any further extortion attempts was “remote”.
The question for the Tribunal was whether owing to a well‑founded fear of persecution, the appellants were unwilling to avail themselves of the protection of Pakistan and thus whether there was a real chance of the appellants suffering serious harm should they return to Karachi. If they did return, they would be single women living alone without family protection or support in a place where a business they operated had been destroyed and its building levelled to the ground against the background of prior extortion claimed made upon the business. The destruction of the pre‑existing business and the building from which it was conducted could not itself provide an answer to the question of whether the Tribunal could be satisfied that if the appellants returned to Karachi and sought to re‑establish themselves in any activity productive of income and thus a livelihood (as the earlier business had done and as they would have to do upon return), that activity and that livelihood would not then be subject to the demands of strangers made of them as single women living alone without protection, for money (just as the earlier business had been subjected to such demands).
In other words, the earlier elimination and destruction of the business and its principal asset did not provide a basis in the context of the statutory question for concluding that the “real chance” of “serious harm” was “remote”.
In that sense, I accept that the decision‑making of the Tribunal miscarried.
The real statutory question based on the claim noted at [62] of the Tribunal’s decision was not properly considered and to the extent to which it might be thought to have been addressed at [92], the foundation facts relied upon simply do not support the conclusion consistent with the rules of reason.
The third factor concerns the observation of the Tribunal at [101] that “[o]ther than the claimed past harm which the Tribunal rejects, with the exception of some extortion attempts on their business, neither of the [appellants] have claimed any past harm on account of being women or single women living alone in Karachi” [emphasis added] and “[n]either did they articulate any specific fears about returning to Karachi for this reason alone” [emphasis added].
The appellants contend that they did articulate specific fears about returning to Karachi on account of being women or single women living alone in Karachi, either in terms expressly, or in words to that effect. They say that they expressed fears of future extortion attempts; fears of people other than MQM demanding money; fears of a lack of adequate protection for women; fears of a lack of safety; a fear of psychological and physical harm at the hands of strangers; and fears of being harassed and dishonoured. Many of these matters have been identified earlier in these reasons. However, as to those matters, it should be noted that in the interview with the daughter, the first appellant claimed, through the interpreter (AB 154), that in the context of demands for money, the appellants are “in a weaker position [as], 2 women sitting there [in Karachi] …”. At AB 161, the second appellant (mother) said in her interview through the interpreter that the “situation was not bad when husband was there but now it is bad”; “I have fear of being killed”; “[we] don’t go outside”; “we have to cover ourselves so no one can recognise us”; “we have fear of living alone there”; “[d]ifferent people other than [MQM] and Haqiqi and we have fear of them” and “yes [our] fear [is] that of living alone. [W]e cannot live alone”.
In response to a question of why it was “okay” (safe) for the mother to live with her daughter in Karachi for 10 or 11 years (the period between the death of the husband/father in 2004 and departure to Australia), the mother said: “situation is now bad and people asking for money. They know we have the hall there”. The claims of a fear of “psychological and physical harm and possibly death” at the hands of strangers is set out in the MIC Lawyers’ submission of 15 May 2019 (see [34] of these reasons) and so too the claims of damage to their house; the levelling to the ground of the marriage hall; and feeling unsafe as a woman with no family and support networks to look into their welfare and safety in Pakistan.
In the context of all of those matters taken together with the Tribunal’s acceptance of extortion in Karachi being widespread; the business of the appellants having been subject to extortion claims; the business having been destroyed; and women facing barriers in securing the protection of police and obtaining access to legal assistance, the appellants contend that the Tribunal was required to address in the reasoning whether the “likely future endeavours” to be undertaken by the appellants should they return to Karachi, would give rise to a real chance of serious harm of the kind they claimed to fear. This contention also engages with the matters at [49] to [54] of these reasons to the extent that the Tribunal considered a real chance of such harm “to be remote” for the reason it identified.
Moreover, the Tribunal’s observations at [101] quoted at [26] of these reasons are correct only so far as the statement concerns claims of past actual harm but is not correct as a statement of the claims of the appellants to fear a real chance of serious harm due to each of the factors just described, as women or single women living alone together in Pakistan without support.
Those claims ought to have been expressly addressed in the sense of whether they gave rise to a well‑founded fear of persecution on the footing claimed. The question for the Tribunal was whether, in a forward‑looking way, assuming a return to Karachi, the appellants as single women living together but otherwise alone (recognising that one of the women, the mother, was at the date of the Tribunal’s decision, 74 years of age) held a well‑founded fear of a real chance of serious harm as a consequence of threats and demands of the kind they had experienced (through the business) as women living alone in Karachi. The answer to that question was ultimately thought to be found in the circumstance that because the business and its assets already had been destroyed, the chance of the claimed fear of harm occurring was not “real” but “remote” because any such demands could only be “fruitless”.
I am satisfied that the claims of a fear of a real chance of serious harm on the basis identified at [31] to [60] were not properly addressed by the Tribunal and to the extent that [92] of the Tribunal’s decision informed the Tribunal’s view as to such claims, the conclusion is not supported by the reasoning.
Ground 2 of the appeal returns to the quoted passage at [26] of these reasons from the Tribunal’s decision at [101] and focuses upon the Tribunal’s following observation:
… with the exception of some extortion attempts on their business, neither of the applicants have claimed any past harm on account of being women or single women living alone in Karachi. Neither did they articulate any specific fears about returning to Karachi for this reason alone.
[emphasis added]
Of course, a part of the past harm was the matter of extortion attempts on the business the appellants conducted which was destroyed and the principal asset levelled. The contended error is that in assessing whether the appellants held a well‑founded fear of persecution for reasons of membership of a particular social group (being women or single women living alone), on the footing that there is a real chance of suffering serious harm, it is necessary (and sufficient) that the reason is “the essential and significant reason” or “those [s 5J(1)(a)] reasons are the essential and significant reasons”: s 5J(4)(a) of the Act. The appellants contend that the reference to “for this reason alone” is “too stringent” and not the test adopted by the statutory text. The appellants also say that the contended difficulty of the Tribunal having adopted the wrong test can also be seen in [104] of the Tribunal’s reasons in which the Tribunal said that it could not be satisfied that there is sufficient information in the particular circumstances of the appellants to conclude that there is a real chance of suffering serious harm on return to Karachi “purely for [the] reason of being women, or single women living alone”.
The appellants contend that the language of [101] and [104] suggests that the Tribunal had formed the view that it could not reach a statutory state of satisfaction unless the claimed fear of harm was “solely based” on the appellants being women, or single women, living alone. The primary judge rejected the contention of error and observed at [68] of the primary judge’s reasons that the reasons of the Tribunal ought not be read with “a keen eye for error” especially as the Tribunal had “identified the relevant law” and “correctly applied” the law at [110] and [111] of its decision.
Paragraph [110] is simply a statement of the conclusion that the Tribunal is not satisfied that the appellants are owed protection obligations and [111] is conclusionary as to s 36(2)(aa) “on the basis of the above findings” concerning s 36(2)(a) of the Act. The conclusion as to s 36(2)(aa) may simply reflect a conclusion based on an application of the wrong test as to the integers of s 36(2)(a), if it be the case that the Tribunal had in mind the wrong test when so deciding the “particular social group” claim.
As to the test, the appellants emphasise the use of the word “alone” in [101] and “purely” in [104] as significant in revealing the test the Tribunal had in mind. They say that the Tribunal did not consider in its reasoning whether the appellants fears of harm, as claimed (for reasons of membership of a particular social group), were the essential and significant reasons for the claimed fear. The words “purely” and “alone” may be intended to convey that the Tribunal could not be satisfied that the reason or reasons for the claimed fear was or were the “essential and significant reason or reasons”.
Although it is true that the reasons of an administrative decision‑maker must be read as a whole, and read fairly in an overall sense rather than in an unnecessarily deconstructed way with an eye to error, the language adopted by the Tribunal at [101] and [104] of the decision suggests, at least, that the Tribunal had an incorrect conception of the test dictated by the text of the Act. First, the actual text is not used or discussed in the analysis. Second, when the explanation is given at [101] and [104], a different emphasis emerges by reference to different text which is not the statutory text.
The appellants also contend that the finding of “extortion attempts having been made on the business rather than the applicants themselves” in the face of a claim by the appellants of fears of harm as members of the particular social group (as described) fails to properly address whether the attempts at extorting money from the marriage hall business was by reason of the business being one owned by two women or single women living together but alone without protection. In other words, what was the reason (or reasons) “the business” was the subject of extortion demands, and a Tribunal having examined that matter, would ask itself, could the Tribunal be satisfied that the essential and significant reason or reasons included (or not) the membership of the appellants (as the owner of the business) of the particular social group as framed, thus providing a basis for a fear of harm as members of that particular social group should they return to Karachi and seek to engage in revenue‑generating activities as they would have to do on return to Karachi?
It seems clear enough that the observation at [88] of the Tribunal’s decision that the extortion attempts were made “on the business rather than the applicants themselves” is concerned with rejecting any MQM connections or relationships the appellants may have had as the basis for those attempts. The Tribunal’s observation at [88] comes at the end of the discussion at [80] to [87] of the Tribunal’s reasons concerning the MQM connections and the conduct of the Rangers. At no point does the Tribunal analyse whether the extortion attempts, the destruction of the business and the levelling of the building was connected with or by reason of the appellants’ membership of the particular social group, being women or single women living alone and without protection. The conclusion at [92] which offends the rules of reason is not a sufficient answer even assuming the right question was asked.
I am satisfied that ground 2 is made out as I am satisfied that the appellants’ contentions as to error on the part of the Tribunal are made out.
As to ground 3, the appellants contend that the findings on the facts concerning the s 36(2)(a) integers cannot be adopted as a determination of the matters relevant to the questions raised by the integers of the s 36(2)(aa) criterion.
Section 36(2)(a) is concerned with whether the Tribunal can be satisfied that the claimed fears of harm are for reasons of perceived political opinion due to association with family members holding a particular political opinion (MQM London group) and/or reasons of the appellants’ membership of the particular social group as described. Reaching a state of satisfaction (or not) about those matters involves consideration of whether there is a real chance of serious harm, as claimed, for the essential and significant reasons as claimed: s 5J(1)(a) and (b); s 5J(4) and (5). The Tribunal was not satisfied that the appellants faced a real chance of suffering serious harm for the claimed reasons. The appellants contend that even though the Tribunal concluded that a chance of the appellants suffering serious harm from attempted extortion was “remote” rather than “real” for the reasons at [92] and that otherwise it could not be satisfied of a real chance of serious harm for either of the claimed s 5J(1)(a) reasons (see [88], [89], [101] and [104]) those conclusions and the reasoning on the facts do not provide a determinative answer to whether the Tribunal could reach a state of satisfaction about the s 36(2)(aa) criterion.
The question arising under s 36(2)(aa) was whether the Tribunal could be satisfied that “substantial grounds” existed for believing that as a “necessary and foreseeable consequence” of the appellants being removed to the receiving country of Pakistan, there was a “real risk” of the appellants suffering “significant harm”.
The appellants claimed to fear harm from persons for the claimed s 5J(1)(a) reasons. The reason or reasons a person claims to fear harm (although directed to particular reasons in s 5J(1)(a) for the purposes of s 36(2)(a)) are not irrelevant to the question of whether there is a real risk of the appellants suffering significant harm as a necessary and foreseeable consequence of the appellants being removed to Pakistan (Karachi). The reasons for which a person claims to fear harm helps to explain whether the risk of suffering harm is a “real risk” and whether it arises, on the whole of the evidence, as a “necessary and foreseeable consequence” of being removed from Australia to the receiving country. The reasons for the claimed harm may also say something about the character of the harm a person fears upon returning to the receiving country. In this case, however, the appellants contend that once the Tribunal concluded that extortion attempts had been made on the business (although it concluded that those attempts had not been made on the appellants “themselves”); that the business had been destroyed; that the building had been levelled; and that the appellants, should they return to Karachi, would be women and single women living alone, it was necessary for the Tribunal to separately consider whether the conjunction of those facts, as found, gave rise to a state of satisfaction (or not) as to whether substantial grounds existed for believing that as a necessary and foreseeable consequence of the appellants being removed to Pakistan (and on the facts, Karachi) as single women living alone with that history of extortion of the business and destruction of the business and its principal asset, there was a real risk of the appellants suffering significant harm.
The consideration of and conclusion about the s 36(2)(aa) criterion, was rolled up in the consideration of and conclusion about the s 36(2)(a) criterion, which reflected error for the reasons already identified.
In this case, I accept that the Tribunal failed to properly address the claim under s 36(2)(aa) of the Act.
By ground 4, the appellants contend that the Tribunal failed to address the sur plus claim by failing to ask itself the correct question. The question to be examined was whether the MQM activities of the daughter undertaken in Australia, which it accepted had occurred, gave rise to a well‑founded fear of persecution. The appellants contend that the Tribunal accepted that while in Australia, the daughter was a member of and engaged in the activities of a group whose leader had been charged with treason, many of its members had been arrested and its offices had been sealed off by the Pakistani Rangers. Thus, the question was whether the daughter had engaged in activities in Australia that could give rise to a well‑founded fear of persecution should she (and her mother) return to Pakistan.
The appellants contend that that particular question was not addressed. The primary judge at [76] found that it was apparent from the Tribunal’s reasons, summarised by the primary judge in addressing grounds 1 to 3 (re‑agitated on appeal) that the Tribunal referred to the activities of the daughter in Australia and that the findings concerning the Tribunal’s statement of satisfaction about the claimed fear of harm due to members of the appellants’ family having associations with MQM took into account and “subsumed” within the findings those Australian activities of the daughter.
The primary judge was correct.
The Tribunal identified and discussed the activities of the daughter in Australia at [74], [75], [76], [77] and [78]. It also found that these claims of activities in Australia had not been raised “solely” for the purpose (or reason) of seeking to strengthen her claims for protection. The factual matters were addressed and were taken into account in the finding.
Ground 4 of the appeal has not been made out.
Having regard to the matters discussed concerning grounds 1 to 3, the appeal is to be upheld. The orders of the primary judge will be set aside and the matter remitted to the Tribunal to be determined according to law.
I certify that the preceding eighty‑two (82) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Greenwood. Associate:
Dated: 6 April 2022