CWW16 v Minister for Immigration
[2020] FCCA 993
•1 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CWW16 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 993 |
| Catchwords: MIGRATION – Application to review decision of Administrative Appeals Tribunal – whether Tribunal misapplied the real chance test. |
| Legislation: Migration Act 1958 (Cth), s.36 |
| Cases cited: AKH16 v Minister for Immigration and Border Protection [2019] FCAFC 47 Minister for Immigration and Ethnic Affairs v Guo WeiRong (1997) 191 CLR 559; [1997] HCA 22 SZSRR v Minister for Immigration and Border Protection [2017] FCA 328 |
| Applicant: | CWW16 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2716 of 2016 |
| Judgment of: | Judge Barnes |
| Hearing date: | 11 June 2019 |
| Date of Last Submission: | 13 June 2019 |
| Delivered at: | Sydney |
| Delivered on: | 1 May 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Okereke-Fisher |
| Solicitors for the Applicant: | Christopher Levingston & Associates |
| Counsel for the Respondents: | Mr Reilly |
| Solicitors for the Respondents: | Mills Oakley Lawyers |
ORDERS
The name of the First Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2716 of 2016
| CWW16 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 2 September 2016 affirming a decision of a delegate of the First Respondent not to grant the Applicant a Protection visa.
The Applicant, a citizen of Pakistan, arrived in Australia in January 2009 as the holder of a Student visa. His Student visa was cancelled on 27 March 2014, apparently due to the non-payment of fees.
In the meantime, on 17 January 2014, the Applicant applied for a Protection visa. He claimed to fear harm in Pakistan because of his Shia religion. He claimed that in 1998 he and his family had received threatening phone calls and letters from the Taliban and Wahabi organisations because of their Shia faith. He claimed that when they were first threatened the family lodged a police report but that the threats, including a threat to kidnap him, continued. He claimed that he and his family were forced to move continually, but that the threats continued. In 2002 he left Pakistan. He lived in Qatar until the end of 2008. During that time he returned to Pakistan for family visits in 2006 and 2008. He came to Australia in 2009.
The Applicant claimed that after they were threatened his family had had no option but to stay with his mother’s parents near a mosque that his grandfather had established and at which all the family members volunteered. The Applicant claimed that although the area was considered safe for Shias, in 2010 a childhood friend and neighbour, who was the son of a renowned scholar, was shot dead at the mosque. He referred to other instances of violence against Shias in Pakistan, including the death of his teacher in a bomb blast outside his uncle’s house and the torture and 2006 murder of a family with the same caste name as his family who he claimed had lived in the same apartment block in Karachi as his family. He also provided information on fatalities due to terrorist violence in Pakistan between 2003 and 2014. He claimed to fear harm from terrorism and extremist attacks.
The application for a Protection visa was refused on 23 September 2014. The delegate found that the Applicant’s claims in relation to past threats to him and to his family were not credible and was not satisfied that being a Shia in Pakistan would, without specific individual targeting, give rise to a well-founded fear of persecution or meet the complementary protection criterion.
The Applicant was not correctly notified of the delegate’s decision until 24 February 2015. On 14 March 2015 he sought review by the Tribunal. He was invited to and attended a Tribunal hearing on 29 August 2016. The only evidence before the court of what occurred in the Tribunal hearing is the hearing record in the courtbook and the Tribunal’s account in its reasons for decision.
The Tribunal Decision
In its reasons for decision, the Tribunal summarised the Applicant’s claims. It accepted that he was a Pakistani Shia Muslim. However, while accepting that the Applicant had genuine fears for his safety based on the volatile and unpredictable nature of sectarian violence in Pakistan, the Tribunal also considered that he had to some extent embellished his level of fear.
The Tribunal was not satisfied that the Applicant’s family was targeted or threatened in Pakistan because of their Shia religion such that they had to move from place to place within Pakistan, were forced to move to Qatar and subsequently to Australia. It was of the view that these claims had been “fabricated around the applicant’s actual experiences of work and study and have been made in an attempt to establish grounds for protection in Australia”.
The Tribunal found that the Applicant’s evidence as to the specific targeting of his family and the reasons they had to move from place to place due to threats (which he claimed had begun in 1996 or 1997) was “vague and unpersuasive”. It had regard to his claims about his family connections to a mosque and their volunteer activities. It accepted that violence against Shias had occurred in Pakistan since at least the early 1990s and that there had been targeted attacks against Shia doctors and professionals, particularly in Karachi. The Tribunal did not accept that the age of the Applicant’s grandfather would have prevented terrorist groups or individuals from targeting him if they were interested in the family due to the fact that the grandfather was a founder of a Shia mosque. The Applicant’s evidence indicated that his mother and father travelled to and from Qatar and returned to Pakistan. In the Tribunal’s view this was not indicative of a family that was being sought and threatened in its own country. Nor did the Tribunal accept that a move of ten kilometres to a different home location in Karachi supported the Applicant’s claim that his family had moved to avoid the attention of extremists in Pakistan.
The Tribunal was also of the view that the Applicant’s evidence in relation to the murder of a family with the same caste name and his belief that the murderers intended to kill his family was unpersuasive. While it accepted that a family with the same caste name as some members of the Applicant’s family was killed and was prepared to accept that the Applicant was present in the apartment block and saw the bodies and that such an experience would have been traumatic for him, it had regard to the limited information provided. The Tribunal did not accept that there was any evidence that the Applicant and his family were intended to be the victims of the murder. It considered that this assertion was highly speculative and not supported by the evidence provided by the Applicant.
The Tribunal found that the Applicant’s claim regarding an attack on him personally, raised for the first time at the Tribunal hearing, was similarly vague and unpersuasive and had been prompted by the Tribunal’s suggestion that it did not appear that the Applicant had been harmed despite his claims of threats for some years as a result of his faith.
The Tribunal was not satisfied that the Applicant had given a truthful account of his reasons for seeking Australia’s protection several years after his initial arrival on a temporary visa. It was prepared to accept that he had some association with named persons who had been killed in Pakistan due to their Shia faith and that at some time a bomb had exploded on the road on which the Applicant’s family lived. However it did not accept that the Applicant or his family was sought or targeted in Pakistan due to their Shia faith, that they lodged a First Information Report with the police or that the Applicant was assaulted for this reason. It did not accept that the Applicant moved to Quetta to live with an uncle for some of his schooling due to threats or harm or that his family moved to a different location in Karachi due to the threats or harm. Nor did it accept that the murder of a family in the same apartment building as the Applicant’s family established that the Applicant or his family was sought or targeted by extremists groups or individuals. It did not accept that the Applicant or his father lived in Qatar for lengthy periods due to a fear of harm in Pakistan.
The Tribunal accepted that the Applicant left Qatar due to his demotion when his employer discovered he was from the Shia faith, but did not accept that he had chosen to remain in Qatar because he was fearful of harm in Pakistan. It noted that, in any event, the Applicant had returned to Pakistan for several months at the end of 2008 to lodge an application for an Australian Student visa. It found that this was further indicative of the fact that he did not genuinely fear that he would be targeted or sought by extremists during that time. It did not accept that the Applicant came to Australia due to any fear of harm in Pakistan. It considered that he did so to study and to join family members who were living in Australia.
The Tribunal did not accept that the Applicant decided to lodge a Protection visa application in 2014 because he had experienced harm in Pakistan. Rather, it considered that the application was motivated by his desire to assist his parents and to remain in Australia with other family members.
The Tribunal considered the risk or chance of harm should the Applicant return to Pakistan. While it did not accept that the Applicant had been specifically sought or targeted in Pakistan in the past, it accepted that he was a member of the Shia faith who was identifiable as such by his name, his religious practices and particular beliefs. The Tribunal also accepted that the high level of sectarian violence in Pakistan was of significant concern to the Applicant. It accepted that there had been a series of targeted and generalised attacks on Shias in Pakistan that had undoubtedly created fear and uncertainty in the Shia community.
However the Tribunal noted that at the hearing the Applicant had agreed with country information discussed with him that indicated that there had been an improvement in the situation for minority groups and a reduction in sectarian violence and terrorist incidents in Pakistan, although the Applicant continued to maintain his claimed fears about the prevalence of Jihadist groups and his inability to freely practice his religion in Pakistan without fear. It acknowledged that he claimed to believe that there was “no guarantee” of life for him in Pakistan and that it was only a matter of time before he was killed.
The Tribunal cited country information concerning the situation for Shias in Pakistan generally, and in Karachi more specifically. It accepted the Applicant’s claims that Shias “remain a target for Islamic fundamentalist groups in various parts of Pakistan and the Shia community has been subject to sectarian violence”, particularly in Quetta, Karachi and other specified places. It also accepted that there had been targeting of Shia places of worship, Shia processions and areas of cities and towns had been targeted by militants, particularly during the Shia community’s commemoration of Muharram. It referred to some 91 separate attacks on Shias in 2012 and fatalities of around 500. It acknowledged that banned Sunni Muslim groups were largely responsible for these attacks and that DFAT reported that sectarian attacks had historically targeted individuals or places of worship, shrines and religious schools and that although the violence had affected all religious and sectarian groups, Shias represented a higher proportion of those attacked and killed. The Tribunal observed that the majority of the casualties of sectarian violence were from large scale attacks rather than targeted killings.
However, while acknowledging that there was “a continuing volatility” in Pakistan in relation to sectarian violence, the Tribunal also had regard to several reports showing there had been a significant reduction in attacks against Shias in Pakistan in recent years (which it outlined) and a substantial reduction in the level of serious crime since the commencement of a National Action Plan. It also found that although Shias were more prominent during certain processions, heightened state protection measures during such celebrations had mitigated the threats associated with such greater exposure.
The Tribunal considered the situation in the Applicant’s home town of Karachi, which it found had historically experienced high levels of generalised violence because of rival ethnic, political, business and criminal interests. However it found that, in line with an overall reduction in sectarian violence, there had been an 80 per cent reduction in the number of targeted killings and ninety three per sent reduction in the number of kidnappings since the commencement of paramilitary operations in September 2013. It referred to statistics about a reduction of targeted killings in 2015. The Tribunal had regard (at paragraph 32) to the fact that:
… Overall, DFAT assesses there is a moderate level of generalised violence and a low level of sectarian violence in Karachi – the number of fatalities from sectarian violence is relatively low in proportion to the city’s large population. DFAT assesses that there is a low risk of sectarian violence for most Shias in Pakistan and a moderate threat of sectarian violence for Shias such as high profile Shia professionals, mainly in Sindh province.
The Tribunal accepted, on the basis of cited information, that there remained “some risk for all Shias throughout Pakistan” and that, as the Applicant claimed, his safety as a Shia could not be “guaranteed”. However it stated that its role was “limited to determining whether there is a real chance that the applicant will suffer serious harm or a real risk that he will suffer significant harm”. It accepted that there would be some continued random and unpredictable attacks on Shias. It accepted that the Applicant was educated, that his family was relatively wealthy, that his grandfather founded a mosque with which he and his family were associated and that he had lived outside Pakistan for several years, but was not satisfied these factors were such that the Applicant had “any particular profile as a Shia” which would attract the adverse attention of extremist groups or individuals. It had regard to the significant reduction in targeted attacks and the absence of evidence that Islamic State had a significant presence in Pakistan or that it would have any specific interest in the Applicant. The Tribunal did not accept that the Applicant would have to modify his religious practices on return to Pakistan or that his involvement in the Shia religion would result in a real chance he would suffer significant harm. It concluded at paragraph 33:
… Taking into account the size of the Shia community and the reduction in attacks and violence against Shias throughout Pakistan, including in Karachi, the Tribunal is not satisfied that there is a real chance that the applicant would suffer serious harm because … of his Shia religion or any other Convention reason if he returns to Pakistan now or in the reasonably foreseeable future. The Tribunal accepts that there remains a level of generalised criminal activity in Pakistan and in Karachi, but is not satisfied that any criminal activity would be perpetrated against the applicant for a Convention reason…
The Tribunal found that the Applicant did not have a well-founded fear of persecution for a Convention reason.
The Tribunal was also not satisfied that there was a real risk that the Applicant would suffer significant harm if he was removed from Australia to Pakistan. Given that he had not claimed to be a victim of generalised criminal activity in the past (apart from one claimed assault which the Tribunal did not accept had occurred) it was not satisfied that there was a real risk the Applicant would suffer significant harm due to generalised criminal activity upon his return to Karachi. The Tribunal was not satisfied that the Applicant’s stress and anxiety regarding his concern about returning to Pakistan would result in him suffering significant harm.
The Tribunal affirmed the decision not to grant the Applicant a Protection visa.
These Proceedings
The Applicant sought review by application filed on 4 October 2016. He has been represented by the same solicitors throughout these proceedings. Consent orders were made on 31 January 2017 permitting the Applicant to file and serve an amended application by 6 April 2017. He did not do so. The Applicant now seeks to rely on a proposed amended application, a copy of which was attached to the written submissions filed on 29 May 2019.
The grounds in the proposed amended application were addressed by the First Respondent in pre-hearing written submissions. However the First Respondent opposed the grant of leave to rely on the amended application because of the extent of unexplained default in relation to the time to file an amended application, the fact that it was only some two years later that the Applicant sought leave to raise a new ground (despite having being legally represented throughout this period) and on the basis that the proposed ground of review had insufficient merit (see BYM16 v Minister for Immigration and Border Protection & Anor [2017] FCCA 2445 at [6]-[7]). Apart from the question of costs, it was not suggested that the First Respondent would suffer any prejudice as a result of allowing reliance on the amended application.
Leave to Rely on the Amended Application
At the hearing counsel for the Applicant sought to rely on a handwritten unfiled affidavit of Eugenia Anang, the solicitor for the Applicant, sworn on the day of the hearing, which was said to address the reasons for the delay in compliance with the court’s orders. The solicitors for the First Respondent had not been provided with a copy of this affidavit. A copy was provided by the court. However in the absence of any objection I gave the Applicant leave to file and rely on this affidavit.
Ms Anang’s evidence was simply that two months before the scheduled hearing date counsel was instructed to act for the Applicant (as evidenced by an email annexed to the affidavit) and that: “Counsel deemed that an amended application was necessary”.
This is an incomplete and rather unsatisfactory explanation for failure to comply with or seek a variation of the consent orders and the considerable delay before the Applicant sought to rely on a proposed amended application, in circumstances where he had been represented by the same solicitors since the judicial review application was filed. This is of concern (see BYM16 at [6]-[7]). It weighs against the grant of leave.
However, as remarked by Judge Kendall in EOW18 v Minister for Home Affairs & Anor [2019] FCCA 3554 at [66], a Protection visa applicant should not be prejudiced by such actions of his representatives.
I also raised an issue at the hearing as to whether, if leave was not granted, the Applicant would seek to rely on, and was in a position to address, the ground in the original application (which was not pressed in the proposed amended application). Counsel for the Applicant did not address this issue.
The Minister did not contend that any prejudice would be suffered were leave to be granted and addressed the proposed ground of review in pre-hearing submissions and at the hearing.
While leave to amend should not be granted if the proposed ground is unarguable, futile or has no reasonable prospects of success (see SZSRR v Minister for Immigration and Border Protection [2017] FCA 328 at [48]), in this case I am satisfied, on a reasonably impressionistic view, that while somewhat lacking in clarity, the proposed new ground (as explained in submissions) is arguable.
In these somewhat unsatisfactory circumstances, despite the fact that the delay and the less than satisfactory explanation weigh against leave being granted, the Applicant should not be prejudiced by his lawyer’s conduct, the Minister faces no prejudice if leave is granted and the proposed ground, as explained in submissions, is arguable. Leave to rely on the proposed amended application should be granted.
However, for the reasons that follow, the ground is not made out and the application should be dismissed.
Whether the Tribunal misapplied “the real chance test”
The sole ground in the amended application is as follows:
The Tribunal committed jurisdictional error by misapplying the real chance test to independent evidence, making inaccurate inferences, failing to genuinely consider the accepted residual risk of serious harm and arriving at a conclusion that was not supported by evidence before the tribunal.
PARTICULARS
a) The Tribunal accepted that the Applicant is a Shia Muslim and a Pakistani national. It also accepted that the Applicant had genuine concerns about returning to Pakistan because of sectarian violence. [Paragraph 15, CB 153]
b) The Tribunal accepted the Applicant’s claims that Shias remain a target for Islamic fundamentalist groups in various parts of Pakistan and the Shia Community has been subjected to sectarian violence. [Paragraph 30, CB 158]
c) The Tribunal accepted that there had been a series of targeted and generalized attacks on Shias in Pakistan.
d) The Tribunal found that there are several reports showing that there has been a significant reduction in terrorist attacks against Shias in Pakistan. Nevertheless, the Tribunal accepted that there remain some risks for all Shias throughout Pakistan [Paragraph 31 & 33, CB 158-160]
e) Ultimately, the Tribunal concluded that taking into account the size of the Shia community and the reduction in attacks and violence against Shias throughout Pakistan, the tribunal was not satisfied that there is a real chance that he will suffer serious harm or significant harm [Paragraph 33, CB 160]
In submissions counsel for the Applicant explained that the “crux” of the case intended to be advanced was that the Tribunal had misapplied the real chance test to the independent evidence before it, in that it had failed to genuinely consider what the Applicant described as the accepted “residual risk” of serious harm he would be subjected to if he returned to Pakistan and had made inferences and reached conclusions that were not supported by the material before it. This amounted to a contention that in considering whether, on the evidence before it, the Tribunal was satisfied that the Applicant met the criterion in s.36(2)(a) of the Migration Act 1958 (Cth) (the Act), it misapplied “the real chance test”.
In written submissions the Applicant contended that the critical question for the Tribunal was whether the Applicant had a well-founded fear of persecution within s.5J(1) of the Act. However, as the Applicant subsequently conceded in post-hearing supplementary submissions, s.5J had no application to this application, which was lodged before the introduction of that provision. In those supplementary submissions, the Applicant contended generally that his written submissions should be read “pursuant to this supplementary submission”.
The Applicant submitted that the critical test for determining “well-founded fear” had been enunciated by the High Court in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; [1989] HCA 62 and involved both a subjective and objective element. This was said to imply that the Refugees Convention criterion would be satisfied if an applicant could show a genuine fear founded upon a real chance of persecution for a Convention-related reason (see Dawson J in Chan at 396). It was suggested that the High Court had indicated in Chan that a fear of persecution would be well-founded if there was a “real chance” that the non-citizen would be persecuted if returned to the country of nationality (Mason CJ in Chan at 389, Dawson J at 398, Toohey J at 407 and McHugh J at 429).
The Applicant also pointed to the fact that the term “real chance” had been construed to mean a chance that was not remote, regardless of whether it was more than or less than 50 per cent (Dawson J at 398 in Chan); that a non-citizen could have a fear of persecution even if there was a less than 50 per cent chance of the persecution occurring (Mason CJ at 389); and that a real chance excluded a far-fetched possibility of persecution, but that as little as a 10 per cent chance of persecution may constitute a well-founded fear (McHugh J at 429).
The Applicant contended that at the heart of his claims for protection was the claim that he feared that he would be subjected to serious and significant harm if returned to Pakistan by reason of his Shia religion (which the Applicant’s submissions described as the “Shia claim”). It was contended that the Tribunal’s findings reflected an overwhelming acceptance of the Shia claim and, contrary to its conclusion, supported the view that there was a risk that the Applicant would face serious harm from generalised violence within the Refugees Convention criterion (that is, for reason of his Shia religion) if he returned to Pakistan.
It was pointed out that the Tribunal had accepted that the Applicant had a genuine concern about returning to Pakistan because of sectarian violence and genuine fears for his safety; that violence against Shias had occurred since at least the early 1990s; that there had been targeted attacks against Shia doctors and professionals, particularly in Karachi; that as a member of the Shia faith the Applicant was identifiable by his name, his religious practices and particular beliefs; that the high level of sectarian violence in Pakistan was of significant concern to the Applicant; that there had been a series of targeted and generalised attacks on Shias in Pakistan creating fear and uncertainty in the Shia community; that the Applicant claimed that Shias remained a target for Islamic fundamentalist groups in various parts of Pakistan and that the community had been subject to sectarian violence; that although the violence had affected all religious and sectarian groups, Shias represented a higher proportion of those attacked and killed; and that there remained “some” risks for all Shias throughout Pakistan.
It was acknowledged that the Tribunal had noted that there were several reports that there had been a significant reduction in terrorist attacks on Shias in Pakistan in recent years and had referred to statistical data that indicated a reduction in sectarian violence, kidnappings and targeting killings. However it was pointed out that the Tribunal had also acknowledged that, despite such reductions, there remained “some” risks for all Shias throughout Pakistan.
The Applicant submitted that the Tribunal’s ultimate conclusion (taking into account the sheer size of the Shia community and the reduction in attacks and violence against Shias throughout Pakistan) that it was not satisfied that there was a real chance that the Applicant would suffer serious harm for reason of his Shia religion was a rejection of the fact of there being “any relevant risk” to him by reason of his Shia religion if he returned to Pakistan. The Applicant submitted that this was inconsistent with the Tribunal’s acceptance of what the Applicant described as the “residual risk” (which was said to be the fact that there remained “some risks” for all Shias throughout Pakistan).
The Applicant submitted that in its conclusion in paragraph 33 the Tribunal had “failed to register dispositive findings on the Residual Risk”. While it had accepted that there had been a series of targeted and generalised attacks on Shias in Pakistan creating fear and uncertainty in the Shia community and that there was a “residual risk” of violence the Applicant submitted that in its findings the Tribunal had failed to deal with the risk of such generalised attacks on Shias.
In addition, the Applicant submitted that the independent evidence considered by the Tribunal did not disclose any reason for the Tribunal’s conclusion in this respect. Rather, the Tribunal was said to have relied on statistical analysis suggesting a reduction in “terrorist attacks”, targeted killings and kidnappings to support its conclusion in relation to the “residual risk” of harm in circumstances where the evidence was in fact said to show that the scope for the feared harm was beyond those categories of danger.
The Applicant submitted that while the Tribunal was not satisfied that his background was such that he had any “particular profile” as a Shia that would attract adverse attention of extremists groups, this finding was relevant only to the risk of targeted killings (and was in line with the Tribunal’s earlier findings that the Applicant was not at risk of targeted killings). However it was suggested that this finding did not deal with the risk of generalised violence against Shias of the random and unpredictable kind. On this basis it was submitted that it was not open to the Tribunal to conclude that the Applicant’s involvement in the Shia religion would not result in a real chance that he would suffer serious harm.
The Tribunal’s “error” was said to be evident in the fact that it had accepted that there was a residual risk and that the Applicant was still at risk of serious harm by reason of his Shia religion, but had then proceeded to conclude that there was no real chance that he would suffer serious or significant harm if he returned to Pakistan. It was acknowledged that the Tribunal had relied on two factual points to support this conclusion: the size of the Shia community and the reduction in attacks and violence against Shias throughout Pakistan. The Applicant submitted, however, that the Tribunal had made a two-fold error in that these two factual points had already been considered prior to the “residual risk” finding at paragraph 33 of its reasons. The Tribunal was said to have basically found that despite the reduction in sectarian violence, targeted killings and kidnappings which it had detailed (paragraph 32), there was still a “residual risk”. It was submitted that therefore the Tribunal had erred in relying on the same reduction in attacks and violence for the purposes of concluding that there was no chance of serious harm in circumstances where it had not considered or accounted for the “residual risk”.
The other asserted error was said to arise on the basis that the two factual points on which the Tribunal relied were “inferentially inaccurate” and did not support the view that the risk of harm was remote. It was suggested that in so far as in paragraph 33 of its reasons the Tribunal had found that there was no real chance that the Applicant would suffer serious harm by reason of being a Shia because of the size of the Shia community and the reduction in attacks and violence against Shias throughout Pakistan, the independent evidence showed that Shias were a significant minority group at 20 per cent and represented a higher proportion of those attacked and killed. On this basis the Applicant submitted that the Tribunal had erred in citing the size of the Shia community as a reason why an otherwise existing “residual risk” of persecution was deemed to be remote. In addition, in so far as the Tribunal relied on the reduction in attacks and violence against Shias throughout Pakistan and referred to a statistical analysis of the alleged reduction in violence, there was said to be no evidence demonstrating a reduction in attacks and violence against Shias other than the statement by the Tribunal in paragraph 31 referring to a significant reduction in terrorist attacks against Shias in Pakistan. It was submitted that, at best, the independent evidence pointed to a reduction in the number of targeted killings, kidnappings and sectarian violence, but that this did not support the conclusion that there had been a reduction in attacks and violence against Shias generally. There was said to be nothing in the Tribunal’s reasons to explain why it considered the risk of harm to be remote, apart from these two factual points which, it was submitted, did not support the conclusion.
It was also submitted that, besides relying on two erroneous factual points, the Tribunal had failed to consider properly the evidence that underpinned what was said to be its ultimate finding that the risk of serious harm was remote. The Applicant contended that the statistical data referred to in paragraph 32 of the Tribunal’s reasons was not enough to “erase” the “residual risk” finding in paragraph 33 of its reasons.
The Applicant contended that, as in DZADQ v Minister for Immigration and Border Protection (2014) 143 ALD 659; [2014] FCA 754 at [65] per Mansfield J, the essential link in the chain of reasoning in this case (connecting the finding of “residual risk” and the finding of no real chance of serious harm) was missing from the Tribunal’s reasons.
The Applicant pointed out that in Minister for Immigration and Citizenship v Khadji (2010) 190 FCR 248; [2010] FCAFC 145 at [57] the requirement that the Tribunal “have regard to” relevant information had been explained by the Full Court of the Federal Court as requiring engagement “in what has been described as “an active intellectual process” in which each of the prescribed circumstances receives his or her “genuine” consideration”. It was submitted that the Tribunal had not genuinely considered the country information before it.
The Applicant also submitted that the Tribunal made an error of law in making a finding for which there was no evidence (Kostas v HIH Insurance Services Pty Ltd t/as Home Owners Warranty (2010) 241 CLR 390; [2010] HCA 32 at [90]-[91]; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 at [170]).
It was contended that the Tribunal’s failure to have regard to the “residual risk” in assessing in whether there was a real chance that the Applicant would be persecuted by reason of his Shia religion and its consequential erroneous finding was an error that went to jurisdiction.
The First Respondent submitted that there was no inconsistency between the Tribunal’s “residual risk” finding (that there remained some risks for all Shias throughout Pakistan) and its conclusion that the Applicant did not face a real chance of serious harm upon return to Pakistan. It was pointed out that not every risk of harm would constitute a risk of sufficient magnitude to satisfy the “real chance” test.
The First Respondent submitted that it was apparent from its reasons that the Tribunal was cognisant that the requirement to consider whether the claimed fear of harm was a “well-founded” fear of harm for a Convention reason required it to consider whether there was a real chance the Applicant would suffer serious harm. It also understood that that it must consider whether there is a real risk that he would suffer significant harm. It was contended that the Tribunal’s approach accurately reflected the criteria in ss.36(2)(a) and 36(2)(aa) of the Act.
In particular, it was contended that there was no basis to find that the Tribunal misapplied the “real chance” test as the Applicant submitted. It was pointed out that the question of whether the test applicable to the Refugees Convention criterion was satisfied on a particular set of facts was an evaluative determination for the Tribunal and not a question for the court (see CLS15 v Federal Circuit Court of Australia [2017] FCA 577 at [21]). It was suggested that to demonstrate error in this case the Applicant must show that the conclusion reached by the Tribunal as to a lack of a real chance of “residual” harm was irrational or one which it was not possible to reach on the available material (see FJX17 v Minister for Home Affairs [2019] FCA 325 at [17]) and that this had not been done.
At the hearing, counsel for the First Respondent acknowledged that the law applicable was that which pre-dated the introduction of the amendments including s.5J of the Act which were made by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (the 2014 Act). The First Respondent referred to AKH16 v Minister for Immigration and Border Protection [2019] FCAFC 47 and AON15 v Minister for Immigration and Border Protection [2019] FCAFC 48.
It was acknowledged that in considering whether a fear was well-founded the Tribunal must consider the totality of the circumstances, including the Applicant’s individual circumstances (see AKH16 at [28]-[50]) but submitted that in this case, in contrast to DZAZQ, the Tribunal had done so (see AKH16 at [57]). There was said to be nothing to indicate any misunderstanding by the Tribunal of the applicable test or other error of the nature contended for by the Applicant.
In so far as the Applicant submitted that the Tribunal had erred by assessing the “residual risk” by reference to the sheer size of the Shia community, the First Respondent pointed out, that based on the figures cited by the Tribunal, 95 per cent of Pakistan’s population of 190 million people identified as Muslim and of those 20 per cent (that is, approximately 36.1 million people) identified as Shia. It was submitted that in determining the risk of harm faced by any one person by reason of generalised violence against Shias it was open to the Tribunal to consider the total size of the population. In doing so the Tribunal also cited information that 122 Shias had died in sectarian violence between January and June 2015. The First Respondent acknowledged, that if the Shia population of Pakistan had been very small this may have represented a real and substantial basis for the Applicant’s fear of harm, but submitted that it was open to the Tribunal to have regard to the size of the Shia population in Pakistan and that its reasoning in this respect was not illogical.
In so far as the Applicant contended that there was no evidence to support the conclusion that there had been a reduction in attacks and violence against Shias throughout Pakistan, the First Respondent submitted that this did not reflect a fair reading of the Tribunal’s decision. It was pointed out that the Tribunal had cited various aspects of country information establishing that there had been a reduction in terrorist attacks against Shias in recent years; that heightened state protection mitigated risks during Shia religious processions; that there had been a 73 per cent reduction in “targeted killings” in Sindh Province and that prominent sectarian and militant groups had been suppressed by government security operations; that DFAT had reported that the level of sectarian violence in Karachi was low having regard to its population; and that the risk to Shias from sectarian violence was low.
It was submitted that on this information it was open to the Tribunal to conclude that there was not a real chance of serious harm to the Applicant from generalised violence against Shias that met the criterion in s.36(2)(a) of the Act.
Consideration
As indicated, the Applicant now concedes that the amendments in the 2014 Act introducing s.5J of the Act are not applicable. While the ground of review referred to the real chance test, the Applicant also acknowledged that the critical question for the Tribunal in relation to the Refugees Convention criterion was whether the Applicant had a well-founded fear of persecution for a Convention reason. In support of the proposition that the Tribunal had misapplied the applicable test, the Applicant placed reliance on the 1989 decision of the High Court in Chan. However, as pointed out in AKH16 at [39], Chan must be seen in light of the subsequent decision of the High Court in Minister for Immigration and Ethnic Affairs v Guo WeiRong (1997) 191 CLR 559; [1997] HCA 22 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ, in which the High Court “emphasised” that the definition of “refugee” in the Convention used the expression “well-founded fear”, not the expression “real chance of harm”, and explained that to use a “real chance test as a substitute for the Convention term “well-founded fear” is to invite error” (see Guo at [50]).
In AKH16 at [50] and in AON15 at [52] Middleton and Mortimer JJ made the point that:
… In considering whether objectively there is a well-founded fear, the decision-maker should not look to statistics or projections divorced from the fear as articulated by the applicant for a protection visa. At all times the decision-maker must look to the individual applicant’s circumstances to determine whether that applicant, in the circumstances to which she or he will return to her or his country of nationality, has a well-founded fear of persecution …
Their Honours also explained that in considering whether the fear was well-founded, regard must be had to “the totality of the circumstances”.
In this case, the Applicant’s concerns relate to the Tribunal’s findings at paragraphs 30 to 33 of its reasons, which are as follows:
30. The Tribunal accepts the applicant’s claims that Shias remain a target for Islamic fundamentalist groups in various parts of Pakistan and the Shia community has been subject to sectarian violence, particularly in Quette, Karachi, and in parts of Khyber Pakhtunkwa and Gilgit-Baltistan. Most recently, Shia places of worship, Shia processions and Shia areas of cities and towns have been targeted by militants, particularly during the Shia community’s commemoration of Muharram. There were at least 91 separate attacks on Shias across Pakistan during 2012 that resulted in around 500 fatalities. Banned Sunni militant groups, including LeJ, TTP, SSP and others are largely responsible for these attacks. The most recent DFAT report also confirms that the “most potent militant group in Pakistan remains the TTP, a loose network of Sunni militant groups which have splintered since the commencement of Operation Zarb-e-Azb in 2013.” DFAT reports that sectarian attacks have historically targeted individuals, places of worship, shrine and religious schools. Although the violence has affected all religious and sectarian groups, Shias represent a higher proportion of those attacked and killed. According to CRSS for example, 58 per cent of fatalities from sectarian violence (122 of 212 deaths) from January-June 2015 were Shia. The majority of the casualties were from large scale attacks rather than target killings.
31. Whilst acknowledging a continuing volatility in Pakistan in relation to sectarian violence, as discussed with the applicant during the hearing, there are several reports showing that there has been a significant reduction in terrorist attacks against Shias in Pakistan in recent years. The Department of Foreign Affairs and Trade has stated that “credible sources” have reported a 75 per cent reduction in the number of terrorist attacks through Pakistan from September 2014 to September 2015. Another source, the Centre for Research and Security Studies (CRSS) has also reported that there were 77 per cent less target killings and 57 per cent less terrorist attacks in the first six months of 2015 than in the corresponding period in 2014 (there were 411 target killings and 150 terrorist attacks over this period in 2015, compared with 1,242 target killings and 346 terrorist attacks over the same period in 2014. CRSS and others attribute the decline to Operation Zarb-e-Azb, as well as the 20 point National Action Plan on counter-terrorism. Additionally, since the commencement of Operation Zarb-e-Azb Ranger operations have substantially reduced the level of serious crime throughout Pakistan. Although Shias are more prominent during Ashura processions, heightened state protection measures during these celebrations mitigate the threats associated with this greater exposure.
32. In relation to Karachi, DFAT has reported that “with a population of over 20 million, Karachi is the largest city in Sindh and Pakistan and it has historically experienced high levels of generalised violence because of rival ethnic, political, business and criminal interest. However, in line with an overall reduction in sectarian violence, there has been an 80 per cent reduction in the number of target killings and a 93 per cent reduction in the number of kidnappings in Karachi since the commencement of paramilitary Ranger operations in September 2013. CRSS statistics highlight a 73 per cent reduction in the number of target killings in Sindh in January-June 2015 from the corresponding period in 2014 (199 target killings compared with 746). Credible sources have told DFAT that Sindhi Rangers have targeted and dismantled or badly damaged prominent sectarian and militant groups in Karachi. These groups include SSP, ASWJ and LeJ, which have historically operated inBanaras (sic), Sohrab Goth, Quaidabad, Sherpao Colony, Keermar and Baldia, and SMP, which has mostlyoperated (sic) in Abbas Town, Hussain Hazara Goth, Rizvia and Ancholi. According to the South Asian Terrorism Portal (SATP), there were 18 sectarian attacks against Shias in Sindh province in 2015 which resulted in a total of 149 fatalities. These attacks included target killings of high-profile Shias such as doctors, lawyers, teachers, and political and religious leaders. Militants have also conducted large-scale attacks on Shia mosques, religious processions and Shia enclaves in Karachi in 2015. The January IED attack on a Shia imambargah in Shikapur was the largest attack on Shias in Sindh between January and September 2015, killing 61 people. TTP-linked militant group Jundullah also claimed responsibility for a gun attack on Ismaili Shias travelling by bus in Gulshan-e-Iqbal, Karachi, on 13 May 2015, which killed 45 people and injured 24. Overall, DFAT assesses there is a moderate level of generalised violence and a low level of sectarian violence in Karachi – the number of fatalities from sectarian violence is relatively low in proportion to the city’s large population. DFAT assesses that there is a low risk of sectarian violence for most Shias in Pakistan and a moderate threat of sectarian violence for Shias such as high profile Shia professionals, mainly in Sindh province.
33. The Tribunal accepts, on the basis of the above, that there remain some risks for all Shias throughout Pakistan. The Tribunal accepts the Applicant’s claims that his safety as a Shia cannot be “guaranteed”. However, the Tribunal’s role is limited to determining whether there is a real chance that the applicant will suffer serious harm or a real risk that he will suffer significant harm. The Tribunal accepts that there will be some continued attacks on Shias and they are random and unpredictable. The Tribunal also accepts that the applicant is educated, his family is relatively wealthy, his grandfather was the founder of a mosque in which the applicant and his family were associated, and he has lived outside Pakistan for several years. The Tribunal is not satisfied that these factors are such that the applicant has any particular profile as a Shia which will attract the adverse attention of extremist groups or individuals upon his return. As stated above, the number of targeted attacks has been significantly reduced in Pakistan and although the applicant referred to his fear of the growing strength of Islamic State, there is no evidence that Islamic State has a significant presence in Pakistan or would have any specific interest in the applicant upon his return. The Tribunal does not accept that the applicant will have to modify his religious practices upon his return to Pakistan or that his involvement in the Shia religion will result in a real chance that he will suffer serious harm or a real risk that he will suffer significant harm. Taking into account the size of the Shia community and the reduction in attacks and violence against Shias in Pakistan including in Karachi, the Tribunal is not satisfied that there is a real chance that the applicant would suffer serious harm because … of his Shia religion or any other Convention reason if he returns to Pakistan now or in the reasonably foreseeable future. The Tribunal accepts that there remains a level of generalised criminal activity in Pakistan and in Karachi, but is not satisfied that any criminal activity would be perpetrated against the applicant for a Convention reason. The Tribunal has acknowledged the level of stress and anxiety at returning to Pakistan, where he has not lived for several years and where he has no family members, but is not satisfied that there is any evidence which indicates that such factors will result in him suffering significant harm for Convention reasons. The Tribunal is also not satisfied that there is a real chance that the applicant will suffer serious harm for any other Convention reason. The Tribunal finds that the applicant does not have a well-founded fear of persecution for a Convention reason.
(footnotes omitted)
In essence, the Applicant’s contention appears to be that having accepted that there was a “residual risk” of generalised, as opposed to targeted, violence against Shias (that is violence against Shias in general for reason of their religion as distinct from targeted violence aimed at particular Shias or a particular group of Shias), the Tribunal failed to address the risk of such generalised violence against Shias in considering whether the Applicant had a well-founded fear of persecution for a Convention reason.
While counsel for the Applicant expressed concern about the Tribunal’s findings about the risk of violence “of a generalised kind”, this ground relates to the Tribunal’s consideration of the “residual risk” of violence to Shias for a Convention reason, not generalised criminal activity, which the Tribunal considered, but found (in paragraph 33 of its reasons), that it was not satisfied that any criminal activity would be perpetrated against the Applicant for a Convention reason.
In so far as the Applicant sought to rely on DZADQ in support of the ground of review, as the Full Court pointed out in AKH16 at [57] that case dealt with the use of numerical analysis by the Tribunal where no genuine consideration had been given to the particular applicant’s personal circumstances. That decision “depended entirely on the relevant Tribunal’s reasoning and circumstances before the Tribunal” (AKH16 at [57]). The Full Court accepted in AHK16 at [57] that the Tribunal “should not just focus on statistical information or projections divorced from the situation confronting the individual applicant”.
However I am satisfied that in this case, the Tribunal gave consideration to the Applicant’s individual circumstances. It made findings about his claims as to past harm and about his profile, in particular as an educated Shia from a wealthy family from Karachi who had lived outside Pakistan for several years and whose grandfather had founded a mosque in which the Applicant and his family were active. It was not satisfied that he had any particular profile which would attract the adverse attention of (that is, specific targeting by) extremist groups or individuals. It understood that this left his residual claim to fear harm as a Shia from Pakistan generally and Karachi more specifically.
It is also apparent that in the part of the Tribunal decision set out above, the Tribunal engaged in an active intellectual process with regard to the country information it cited. In considering the “residual” risk of violence to Shias (that is, the risks faced by all Shias in Pakistan, as distinct from the risks the Applicant claimed to face because of his personal characteristics other than his identity as a Shia) the Tribunal identified, having regard to country information about the situation in Pakistan, several important factors. It not only considered evidence in relation to targeted attacks (which it explained as sectarian attacks targeting individuals, places of worship, shrines and religious schools), it also made it clear that it understood that the Applicant was concerned about random and unpredictable violence involving attacks on Shias.
In the context of considering whether the Applicant had a well-founded fear of persecution because of his Shia religion, the Tribunal had regard to information about past sectarian violence (both large scale or generalised and also targeted). It acknowledged that there was continuing volatility in relation to sectarian violence, but also had regard to information about a significant reduction in terrorist attacks against Shias (not only targeted killings of particular individuals) as well as heightened state protection mitigating risks during the exposure of Shias in religious processions and attributed a reduction in targeted killings and terrorist attacks to government security operations.
In paragraph 32 of its reasons the Tribunal had regard to the situation in the Applicant’s home area of Karachi, noting not only a reduction in targeted killings and kidnappings, but also an overall reduction in sectarian violence and government action against prominent sectarian militant anti-Shia groups in Karachi. Notably, it had regard to DFAT’s assessment, which drew a distinction between a moderate level of generalised violence (that is, violence that was not targeted at Shias for reason of their religion) and a low level of sectarian violence in Karachi. It had regard to DFAT’s assessment that there was a low risk for Shias other than high profile Shia professionals. It was this “low risk of sectarian violence for most Shias in Pakistan” which the Tribunal accepted remained and that it considered in paragraph 33 of its reasons.
In considering whether the Applicant had a well-founded fear of persecution “for a Convention reason” (that is, because of his Shia religion or for any other Convention reason) it was reasonably open to the Tribunal to have regard to the size of the Shia community and the reduction in attacks and violence against Shias throughout Pakistan. In this way it addressed the risk of harm to Shias generally, as Shias, having considered the Applicant’s subjective fears and personal circumstances but having found that he did not have any particular profile as a Shia which would attract particular adverse attention.
The Applicant contended that there was no evidence or no basis in the independent evidence considered by the Tribunal for its conclusion. The country information cited is not in evidence. However the Tribunal’s findings were supported by what it said about the cited country information, in particular in relation to the recent low risk of sectarian violence for most Shias (such as the Applicant, who was not found to be a high profile Shia professional). It was open to the Tribunal to have regard to recent information about the reduction in violence against Shias. It correctly understood that the fact that the Applicant’s safety as a Shia could not be “guaranteed” was not the test for the purposes of the Refugees Convention criterion in s.36(2)(a) of the Act. It was open to the Tribunal to be of the view that its acceptance that there would be some continued attacks on Shias that were random and unpredictable did not in itself mean that there was sufficient basis in the evidence to describe the Applicant’s fear of persecution as a Shia as “well-founded”. It was not illogical for the Tribunal to take into account the size of the Shia community in conjunction with the reduction in attacks and violence against Shias in Pakistan. The Tribunal explicitly turned its mind to whether, given its earlier findings, the Applicant faced a real chance of harm for reason of his Shia religion.
As the First Respondent submitted, it was open to the Tribunal to have regard to the size of the Shia population in Pakistan in assessing whether the Applicant’s fear of harm was well-founded. Given the figures cited and country information about the low risk to Shias from sectarian violence, its reasoning was not illogical.
It has not been established that the Tribunal misapplied the applicable test in considering independent evidence or otherwise erred in the manner contended for by the Applicant. The ground of review is not made out. The application should be dismissed.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 1 May 2020
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