EJC18 v MICMSMA
[2020] FCCA 3171
•27 November 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EJC18 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 3171 |
| Catchwords: MIGRATION – Protection (class XA) visa – section 36(2)(aa) of the Migration Act 1958 (Cth) – interpretation of necessary and foreseeable consequence – whether harm arising from choosing to enforce legal land rights is a necessary and foreseeable consequence of being returned to country of citizenship – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5J, 36 International Covenant on Civil and Political Rights (1996) Explanatory Memorandum to the Migration Amendment (Complimentary Protection) Bill 2011 (Cth) |
| Cases cited: ADL17 v Minister for Immigration & Anor [2020] FCCA 148 BPX17 v Minister for Immigration and Border Protection [2018] FCA 763 CRI026 v Republic of Nauru (2018) 92 ALJR 529 EJB18 v Minister for Immigration & Anor [2020] FCCA 3170 |
| First Applicant: | EJC18 |
| Second Applicant: | EJD18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2561 of 2018 |
| Judgment of: | Judge Mercuri |
| Hearing date: | 15 July 2020 |
| Date of Last Submission: | 15 July 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 27 November 2020 |
REPRESENTATION
| Counsel for the applicants: | Mr Aleksov |
| Solicitors for the applicants: | Carina Ford Immigration Lawyers |
| Counsel for the respondents: | Mr Kaplan |
| Solicitors for the respondents: | Australian Government Solicitor |
ORDERS
The applicants’ application filed on 24 August 2018 and as amended on 24 June 2020 be dismissed.
The applicants pay the first respondent’s costs in a sum to be fixed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2561 of 2018
| EJC18 |
First Applicant
| EJD18 |
Second Applicant
and
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This matter, together with EJB18 v Minister for Immigration & Anor [2020] FCCA 3170 (“EJB18”), involves members of the same family unit. Their claims have been dealt with as two separate proceedings before the delegate of the first respondent (“the delegate”), the Administrative Appeals Tribunal (“the Tribunal”) and this court.
Although separate decisions were handed down by the Tribunal in respect of each proceeding, the claims were essentially the same and arose from the same substratum of facts. Moreover, the Tribunal’s decision was based on the same analysis of the applicable provisions of the Migration Act 1958 (Cth) (“the Act”).
Similarly, the applications for judicial review in this proceeding and in EJB18 raise the same grounds of review and give rise to the same questions of law. I say this by way of background to explain the similarities in the reasons given below in respect of the application for judicial review in these proceedings to those involving EJB18.
The applicants’ claims
The first applicant is a citizen of Pakistan[1] and the second applicant is the first applicant’s spouse.[2]
[1] Court book page 12.
[2] Court book page 12.
The first applicant applied for a protection visa on 13 December 2013 and claimed to fear persecution by reason of his membership of a particular social group. The second applicant’s application was as a dependent of the first applicant as a member of the same family unit.[3]
[3] Court book pages 60 to 66.
The delegate refused the applicants’ application for a protection visa.[4]
[4] Court book pages 537 to 555.
The applicants then applied to the Administrative Appeals Tribunal (“the Tribunal”) for a review of the delegate’s decision on 28 May 2015.[5]
[5] Court book pages 558 to 560.
The first applicant appeared before the Tribunal on three occasions, including on occasion in a combined hearing with his mother, the applicant in EJB18. The applicants were represented by a migration agent throughout this process.[6]
[6] Court book page 881.
On 7 August 2018, the Tribunal affirmed the delegates’ decision.[7]
[7] Court book pages 880 to 897.
The Tribunal’s reasons
As will become apparent, it is not necessary to summarise in detail the consideration given by the Tribunal to each of the applicants’ claims, as the applicants did not take any issue with the Tribunal’s primary finding that the applicants did not meet the criteria for a protection visa on refugee grounds. However, to understand the grounds of review and the findings I make below, I set out a brief summary of the Tribunal’s key findings.
After setting out the relevant law and a summary of the first applicant’s claims, the Tribunal set out the evidence led by the first applicant and its findings of fact. Relevantly, the Tribunal accepted that:
a)the first applicant’s father had owned various pieces of land in Pakistan which had since been taken by ‘land grabbing’ criminals, both before and after 1995 when his father passed away;[8]
b)there was a dispute between the first applicant, his family and a ‘Mr J’ over some land known as ‘Cosmic Town Land’, which the first applicant and his family asserted had been appropriated by Mr J;
c)there was a confrontation over ownership of the said land in 2008, and that this dispute between the first applicant, his family, and Mr J continued until the applicant left Pakistan;[9] and
d)the first applicant and his family had received threats from Mr J.[10]
[8] Court book page 884 at paragraph 29.
[9] Court book pages 884 to 889.
[10] Court book page 888 at paragraph 49.
The first applicant claimed that his brother was shot at in or about 2011. In this regard, the Tribunal accepted that:
[the first applicant’s brother] was driving in the vicinity of gunfire but [found that] it was speculative to associate this action with the Cosmic Town dispute as Karachi is a city with ‘gun violence’. There is no basis upon which to speculate that it was for the purpose of intimidation as the purpose in such a context would need to be clearer to be intimidation.[11]
[11] Court book page 888 at paragraph 50.
The Tribunal:
a)accepted claims made by the first applicant’s mother (the applicant in ‘EJB18’), that the family was being stalked and that shots were fired on one occasion into the wall of their house;[12]
b)accepted the first applicant had been kidnapped in about 2009, but did not accept that this was linked to the ‘Cosmic Town Land’ dispute;[13]
c)accepted the first applicant’s mother’s home was the subject of a break in in about 2011, and that the offenders asked for the home owner by name, but did not accept that this was linked to the ‘Cosmic Town Land’ dispute.[14]
d)did not accept that the shots fired at the mother’s home were related to that issue, as ‘[t]here are numerous alternative possibilities for finding bullet holes in a gate in a city facing gun violence’;[15] and
e)accepted that the first applicant’s brother was also subjected to various threats in 2011 and 2012.[16]
[12] Court book page 888 at paragraph 51.
[13] Court book pages 888 and 889 at paragraph 52.
[14] Court book page 889 at paragraph 53.
[15] Court book page 889 at paragraph 54.
[16] Court book page 889 at paragraph 55.
Against this background, the Tribunal considered the applicants’ fears of returning to Pakistan and found:
… I accept that (the applicants and their family) will continue to pursue remaining lawful options; those that would put them at risk include an appeal to the Supreme Court or going to the media to expose the corruption.’[17]
[17] Court book page 892 at paragraph 71.
The Tribunal relevantly noted that:
There is a tension that needs to be distinguished between the applicant pursuing possession of the land and the applicant not doing so but returning to Karachi. In other words, has the passage of time secured Mr J’s grasp on the land such that the applicant’s mere presence would not raise concerns regardless of the land registry not being updated to reflect the High Court decision. I find that it has. … This leads to the conclusion that the applicant’s mere presence in Pakistan would not trigger action by (Mr J) while attempts to re-acquire the land would.[18]
[18] Court book page 893 at paragraph 75.
The Tribunal went on to say:
I find that Mr J would feel that his grasp on the land was at risk if the applicant showed an interest in pursuing ownership through the Supreme Court or the media. The question then becomes what harm may befall the applicant from Mr J.[19]
[19] Court book page 893 at paragraph 76.
After considering this further in paragraphs [76] and [77] of its decision record, the Tribunal stated:
That the applicant could choose to pursue a claim against Mr J in the media or through the Supreme Court and the reaction that this may generate from Mr J, possibly extending to violent action, leads me to conclude that the applicant faces a real chance of serious harm.[20]
[20] Court book page 893 at paragraph 78.
Of particular relevance to the grounds raised in this proceeding, at [87] of its decision, the Tribunal considered this harm in the context of the first applicant’s complementary protection claim. Whilst it accepted that there was a ‘real risk’ of ‘significant harm’ for the purposes of the first applicants’ complementary protection claim, the Tribunal then went on to consider whether this real risk of significant harm was a ‘necessary and foreseeable consequence’ of the first applicant’s removal from Australia.[21]
[21] Court book page 895 at paragraph 87.
At [88] of its decision record, the Tribunal stated:
I have found earlier that the applicant’s mere presence would not raise the concerns of Mr J. Instead, it would require pursuit of the land either through the courts or the media. This is a choice the applicant can make. Were he to choose not to pursue the case for whatever reason it would not lead the applicant to suffer significant harm by way of socio-economic deprivation as the applicant and his family have other property and he has shown himself capable of establishing his own business. In other words he would not suffer significant harm by choosing the safer course of action.’[22](emphasis added)
[22] Court book pages 895 and 896 at paragraph 88.
The Tribunal referred to the decisions in Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 and BPX17 v Minister for Immigration and Border Protection [2018] FCA 763.[23] It then concluded that ‘the applicant’s removal from Australia does not lead to a real risk of significant harm and as such does not meet s. 36(2)(aa)’.[24]
[23] Court book page 896 at paragraph 89.
[24] Court book page 896 at paragraph 91.
Similarly, in considering the applicant’s complementary protection claims cumulatively, the Tribunal concluded that ‘they do not amount to a real risk of significant harm as a necessary and foreseeable consequence of removal.’[25]
[25] Court book page 897 at paragraph 101.
Ground one
The first ground of review was set out as follows:
The Second Respondent engaged in jurisdictional error by applying the incorrect legal test for determining what amounts to a ‘real risk of significant harm’.
Particulars
(a)At paragraph 71, the Second Respondent accepts that if returned to Pakistan, the Applicant would pursue recovery of their land, by lawful means. The Second Respondent accepted that this would put them at risk of serious and significant harm.
(b)Paragraph 88 of the Second Respondent’s decision reads:
‘Does the applicant’s removal from Australia lead to a real risk of significant harm? I have found earlier that the applicant’s mere presence would not raise the concerns of Mr J… Instead, it would require pursuit of the land either through the courts or media. This is a choice the applicant can make. Were the family to choose not to pursue the case for whatever reason it would not lead the applicant to suffer significant harm by way of socio-economic deprivation as the applicant and her family have other property. In other words she (sic) would not suffer significant harm by choosing the safer course of action.’
(c)The Second Respondent reasoned that the Applicant’s ‘choice’ to lawfully pursue their land in Pakistan was not substantial grounds for believing that as a ‘necessary and foreseeable’ consequence of return to Pakistan, the Applicants were exposed to a real risk of harm.
(d)The test set out in section 36(2)(aa) of the Migration Act 1958 in relation to what is ‘necessary and foreseeable’ does not suggest that lawful conduct by a person upon return is to be construed as being the product of a ‘choice’ and therefore not within the scope of what is ‘necessary’ upon return.[26]
[26] Applicant’s amended application filed 24 June 2020 pages 3 and 4.
Applicants’ submissions
Counsel for the applicants stated in oral submissions that the primary issue in this matter is the Tribunal’s conclusion that the real risk of serious harm the applicants would face on their return to Pakistan did not meet the requirements of section 36(2)(aa) of the Act. This was reached on the basis that it was not a ‘necessary and foreseeable consequence’ of their return. Put simply, by focussing on whether the first applicant had a choice about how to behave on his return to Pakistan, it was submitted for the applicants that the Tribunal focussed on the wrong issue, applied the wrong test and therefore fell into error.
Section 36(2)(aa) of the Act relevantly provides:
(2)A criterion for a protection visa is that the applicant for the visa is:
…
(aa)a non-citizen in Australia … in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm;
…
Whilst accepting that the test requires consideration of what is a ‘necessary and foreseeable consequence’ of removal from Australia to the receiving country, the applicants submitted that:
there is nothing in the language, context or structure of the provision which suggests that lawful conduct by a person upon return is to be construed as being the product of a ‘choice’ or not, which implicitly, would have it that only things which are not choices are within the ambit of the test.[27]
[27] Applicant’s outline of submissions filed 24 June 2020 at paragraph 6.
It was submitted for the applicants that the question of what is necessary and foreseeable for the purposes of section 36(2)(aa) of the Act must be understood as a question of causation, which involves a question of degree. Moreover, when looking at the issue of causation, it was submitted that consideration must be given to the various things which had led to a particular event, noting that often there are were series of contributing factors ranging in degree and force to any particular event or occurrence, and that sometimes it was not possible to know and identify all of the factors which have led to a thing occurring.
It was further submitted that in determining this ground, and considering the question of causation, regard must be had to the statutory context in which section 36(2)(aa) arises. In this regard, it was submitted that:
a)the context gives effect to a protection obligation that Australia has under international law which is aimed at providing protection to non-citizens who are being considered for repatriation;
b)the statutory context is a humanitarian one;
c)section 36(2)(aa) is therefore beneficial legislation, and was intended to avoid consequences which the Australian government through its legislation, had considered were appropriate to avoid; and
d)given this statutory purpose and context, the words ‘necessary and foreseeable’ embrace all realistic things which flow as a natural consequence of a person’s life upon removal within the reasonably foreseeable future.
Inherent in that submission is the understanding that a person will make many choices, and all of those choices come within the phrase ‘necessary and foreseeable’ consequences of removal.
In this case, the applicants submitted that the Tribunal:
a)focused on the fact that the applicants had a ‘choice’ as to whether they would pursue their land claim, in the sense that they were not compelled to do so;
b)concluded that, if the applicants were to exercise that choice and pursue their land claim, then any consequences which flowed from that choice would no longer fall within the concept of ‘necessary and foreseeable consequences’ of their removal to Pakistan;
c)in reaching that conclusion, misunderstood the statutory requirements and gave the phrase ‘necessary and foreseeable’ too narrow a construction; and
d)consequently, was led into error.
The applicants also submitted that this was not a case to which the reasonable modification of behaviour provisions in section 5J(3) of the Act applied. It is informative that there is no equivalent provision in relation to complementary protection provisions.
The applicants argued that, on the first respondent’s case, the notion of a choice would have to extend to all choices, including the choice as to where to live. If the Tribunal’s reasoning, which would see section 36(2)(aa) of the Act not applying where it involved the applicant making a choice on return to the receiving country as to where to live, there would be no need for the express exclusion in section 36(2B)(a) relating to reasonable relocation within the applicant’s home country.
It was submitted that the totality of exceptions to section 36(1)(aa) are those contained in section 36(2B), and this does not include a general exception as to choices generally.
In response to a question as to whether there were any authorities which might assist in determining the issue before the court, counsel for the applicants indicated that his researchers were unable to identify any case directly on point.
However, counsel noted the High Court’s decision in CRI026 v Republic of Nauru (2018) 92 ALJR 529 (“CRI026”). It was submitted that the issue before the High Court in that case related to whether there was a reasonable relocation limitation under the applicable international law treaties, in particular, the International Covenant on Civil and Political Rights (1996) (“ICCPR”). The High Court said that if one could reasonably relocate on return so as to avoid any risks, it could not be said that any risk of harm was a necessary consequence of return. It was submitted by the applicants that this case was of minimal relevance to the present case, given that under the Act, the question of reasonable relocation was expressly dealt with.
Similarly, it was submitted that the case of Minister for Immigration and Citizenship v Anochie (2012) 209 FCR 497 (“Anochie”) also concerned Australia’s non-refoulement obligations under the ICCPR, and in particular, whether these obligations limited the Minister’s right to cancel Mr Anochie’s visa and deport him to his country of origin. It was submitted by the applicants that this case also did not provide any specific assistance in the present matter before the court.
First respondent’s submissions
In response, it was submitted on behalf of the first respondent that the starting point in considering this application were the words used in section 36(2)(aa) of the Act; namely, that the ‘real risk’ that must be established ‘must arise as a necessary and foreseeable consequence of the visa applicant’s removal from Australia to his or her receiving country.’[28]
[28] Respondents’ outline of submissions filed 8 July 2020 at paragraph 24.
In interpreting the words ‘necessary and foreseeable’, the first respondent relied upon observations made in CRI026.[29] As noted above, that case involved an appeal from the Supreme Court of Nauru to the High Court of Australia. It concerned consideration of Nauru’s non-refoulement obligations under various international instruments, including the ICCPR.
[29] CRI026 v Republic of Nauru (2018) 92 ALJR 529.
In that decision, the High Court set out various provisions of the ICCPR, including article 2,[30] before going on to say:
As can be seen, those provisions of the ICCPR do not expressly impose a non-refoulement obligation on States Parties. Rather, it is accepted as a matter of international law that Art 2 impliedly obligates States Parties not to remove a person from their territory where there are ‘substantial grounds’ for believing that there is a real risk of irreparable harm of the kind contemplated by Arts 6 and 7 in the country to which removal is effected. ‘Substantial grounds’ means however, that it must be a necessary and foreseeable consequence of refoulement that the person would suffer the kind of harm identified in Arts 6 and 7. As Perram J observed in Minister for Immigration and Citizenship v Anochie, that is a high hurdle for the applicant to meet. The risk of harm must be both necessary and foreseeable and, according to the weight of relevant international jurisprudence, it is neither if it can be avoided by reasonable relocation within the applicant’s country of nationality.[31] (footnotes and references excluded)
[30] CRI026 v Republic of Nauru (2018) 92 ALJR 529 at [23].
[31] CRI026 v Republic of Nauru (2018) 92 ALJR 529 at [24].
It was submitted on behalf of the first respondent that the High Court gave context to the phrase ‘necessary and foreseeable’.
It was further submitted that, although these observations were not made in the context of section 36(1)(aa), the High Court’s comments in CRI026 and Perram J’s comments in Anochie are highly persuasive as to the meaning that ought to be given to those terms in section 36(1)(aa).
Counsel for the first respondent also referred to the Explanatory Memorandum to the Migration Amendment (Complimentary Protection) Bill 2011 (Cth), which relevantly contained the following comments:
The Bill reflects that a high threshold is required to engage Australia’s non-refoulement obligations under the Covenant and the CAT. In order for a non-citizen to receive complementary protection, the Minister must have substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm. This test is reflected in the views of the United Nations Human Rights Committee in its General Comment 31 as to when a non-refoulement obligation will arise under the Covenant.[32]
[32] Explanatory Memorandum to the Migration Amendment (Complimentary Protection) Bill 2011 (Cth) at page 3.
The Explanatory Memorandum then went on to say:
Australia’s non-refoulement obligations … require a high threshold for these obligations to be engaged. In each case, and in order for an applicant to satisfy the criterion in new paragraph 36(2)(aa), the Minister must have substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm. … A real risk of significant harm is one where the harm is a necessary and foreseeable consequence of removal. The risk must be assessed on grounds that go beyond mere theory or suspicion but does not have to meet the test of being highly probable. The danger of harm must be personal and present. The intention of the new paragraph 36(2)(aa), read in conjunction with item 5 is to assess a non-citizen’s protection claims in relation to the destination country to which the non-citizen would be removed, being their country of nationality or former habitual residence.[33](emphasis added)
[33] Explanatory Memorandum to the Migration Amendment (Complimentary Protection) Bill 2011 (Cth) page 11 at [67].
In relation to section 36(2B) of the Act, the Explanatory Memorandum relevantly noted:
The effect of new subsection 36(2B) is to state expressly when there is taken not to be a real risk that a non-citizen will suffer significant harm (and therefore when Australia will not owe a non-refoulement obligation to the non-citizen). Australia’s non-refoulement obligations under the Covenant and the CAT require a high threshold for these obligations to be engaged. The purpose of new subsection 36(2B) is to ensure that Australia’s non-refoulement obligations are applied and implemented consistently with international law.[34] (emphasis added)
[34] Explanatory Memorandum to the Migration Amendment (Complimentary Protection) Bill 2011 (Cth)
It was submitted for the first respondent that implicit in paragraph [75] of the Tribunal’s decision[35] was an acceptance that the mere presence of each applicant in Pakistan would not attract a real risk of harm. The Tribunal reasoned that the applicants could exercise a choice as to whether to pursue the ‘Cosmic Town Land’ claim. It was submitted that any other construction of paragraph [75] would make no sense.
[35] Court book page 893.
Applying this reasoning, the Tribunal found that the applicants had options or choices as to whether to pursue the ‘Cosmic Town Land’ claim. For as long as that option or choice existed, any real risk of significant harm which would follow if they chose to pursue that claim, could not be said to be both a ‘necessary and foreseeable’ consequence of removal to Pakistan, but rather, would be a consequence of the choice made by the applicants on their return. The first respondent submitted that it might be foreseeable (although that was not conceded), but it was not a necessary consequence of removal.
The first respondent accepted that findings were made in paragraph [71][36] that the first applicant and his family would continue to pursue lawful options to recover ownership of the ‘Cosmic Town Land’.
[36] Court book page 892.
But the first respondent went on to say that there was implicit acceptance in paragraph [75][37] which then fed into the conclusion reached in paragraph [88][38] that there was nonetheless a choice or an option that the first applicant and his family had as to whether or not to pursue the ‘Cosmic Town Land’ claim. Therefore, each applicant could take steps to avoid the consequence of any serious harm that they might otherwise face by doing so.
[37] Court book page 893.
[38] Court book pages 895 and 896.
It was submitted for the first respondent that the phrase ‘necessary and foreseeable’ accommodates notions of avoidance of a real risk of significant harm and notions of choices being exercised by a non-citizen.
The first respondent also submitted that the court ought to reject the applicants’ submission that if this construction were accepted, that would render section 36(2B)(a) of the Act otiose. The first respondent submitted that the fact that a choice can be made will not be determinative, because section 36(2B)(a) also requires an element of reasonableness.
Put simply, the first respondent submitted that if a visa applicant could avoid a real risk of significant harm on their return to a receiving country, it follows that any risk of harm will not be a necessary consequence of removal, and therefore section 36(1)(aa) of the Act is not engaged.
‘Necessary and foreseeable consequence’
Turning then to the issue before this court – the meaning of ‘necessary and foreseeable’ within section 36(2)(aa) of the Act.
I accept the argument put forward by the applicants that in considering whether Australia owes a protection obligation under section 36(2)(aa) of the Act, consideration must be given both to the context and purpose of that provision. As noted by the applicants, section 36(2)(aa) is aimed at meeting Australia’s international obligation not to send a person back to a country, even where, as here, they have not established that they satisfy the requirements for the issuing of a protection visa.
However, it is clear that this protection is not ‘at large’. The limits of this protection are set out in the terms of section 36(2)(aa) of the Act, namely, that Australia is not to return a person to a country where:
… the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm. (emphasis added)
The argument advanced by the applicants is that, in considering what constitutes a necessary and foreseeable consequence of a person’s return, regard must be had to what that person is likely to do on their return.
In this case, having found that:
a)the applicants are likely to continue to pursue the return of their lands by lawful means through the courts and the media; and
b)this would expose the applicants to a real risk of serious harm;
the conclusion which the Tribunal ought to have reached was that the real risk of serious harm was a necessary and foreseeable risk of that return.
This analysis, however, does not give due regard to the word ‘necessary’ in section 36(2)(aa). Whilst such harm is clearly foreseeable, the question is whether it is a necessary, as well as foreseeable, consequence of return, in circumstances where there is no compulsion on the applicants to engage in that conduct on their return.
The reasoning in CRI026 and Anochi suggests that, for the purposes of the ICCPR, the risk of harm will not be both necessary and foreseeable if the applicants could avoid that risk. In this case, the risk of harm would not be a necessary consequence of the applicants being removed from Australia to Pakistan, if they did not pursue the ‘Cosmic Town Land’ claim. That is, it is open to the applicants to avoid the real risk of serious harm by making a different decision on their return to Pakistan. It therefore cannot be said that any harm which may come to them would be a consequence of their return to Pakistan, but rather, it would be a consequence of the decision made by them on their return to pursue their legal rights.
I do not accept the applicants’ submission arising from section 36(2B). The fact that the legislature deemed it appropriate to deal with the issue of reasonable relocation (among other things) in the context of what will amount to a real risk of significant harm in section 36(2B), is not indicative of any intention to limit or deal with the meaning of the term ‘necessary and foreseeable consequence’ in section 36(1)(aa).
Section 36(2B) of the Act does no more than set out some examples of circumstances which will not constitute a ‘real risk that a non-citizen will suffer significant harm in a country’. It clearly does not set out all of those circumstances, nor could it properly be said that it has dealt comprehensively with any notion of ‘choice’ and the impact of ‘choice’ on whether the first respondent can be satisfied there is a real risk of significant harm as a necessary and foreseeable consequence of an applicant’s return to the receiving country.
In saying that the applicants had a ‘choice’ as to whether or not to pursue the ‘Cosmic Town Land’ claim, the Tribunal did little more than indicate that the pursuit of land claims was not something that was such an intrinsic part of the applicants that any harm which would follow from pursuing those claims could be said to be a natural consequence of their return to Pakistan. There is much force to this analysis.
Absent that decision on the part of the applicants, there is no other reason for concluding that they would face a risk of harm on their return to Pakistan.
In the absence of any binding authority on the interpretation of the term ‘necessary’ in section 36(1)(aa) of the Act, and having regard to the comments by Perram J in Anochie and the High Court in CRI026 which are persuasive authorities on this issue, I find that the Tribunal did not fall into error in concluding that if the applicants sought to pursue the property claim on their return, any harm that may follow is not a necessary and foreseeable consequence of their return.
If it was sufficient for the risk to arise as a foreseeable consequence of the applicants’ return, the applicants’ case would be made out. But what is required is that the risk of harm be a ‘necessary and foreseeable consequence’ of the applicant’s return. This is a higher bar than just a foreseeable consequence. The term ‘necessity’ connotes a sense of inevitability or as following as the next logical step in a sequence of events.[39] The applicant’s view would give the word ‘necessary’ in section 36(1)(aa) no work to do.
[39] See Macquarie Dictionary; Oxford English Dictionary.
As the applicants have the ability to influence the outcome, it was open to the Tribunal to conclude that the real risk of serious harm was not a necessary and foreseeable consequence of the applicants’ return to Pakistan, but rather the consequence of the applicants’ decision to further their dispute with Mr J over the return of the ‘Cosmic Town Land’.
For each of these reasons, the applicants’ first argument of ground one is not made out.
The applicants formally maintained their alternative argument in relation to ground one. The applicants’ submissions in relation to this aspect of ground one were very brief and set out in paragraph 16 of their written submissions.
It was common ground between the parties that Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 (“S395/2002”) does not apply to section 36(1)(aa) of the Act. The applicants’ position was somewhat more nuanced in so far as they said that it does not apply ‘directly’.
Neither party, however, submitted that S395/2002 applied directly to section 36(2)(aa) of the Act. Notwithstanding this, the applicants formally maintained this ground of review.
In Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317 (“SZSCA”), Gageler J relevantly summarised the principle arising from S395/2002 as follows:
[36] The principle for which that case stands is that a fear of persecution for a Convention reason, if it is otherwise well-founded, remains well-founded even if the person concerned would or could be expected to hide his or her race, religion, nationality, membership of a particular social group, or political opinion by reason of that fear and thereby to avoid a real chance of persecution. …
[37] The S395 principle should not be extended beyond its rationale. The principle directs attention to why the person would or could be expected to hide or change behaviour that is the manifestation of a Convention characteristic. The principle has no application to a person who would or could be expected to hide or change such behaviour in any event for some reason other than a fear of persecution.
[38] The s395 principle similarly has no application to a person who would or could be expected to hide or change behaviour that is not the manifestation of a Convention characteristic. That is so even if the person would or could be expected to change that behaviour in order to avoid a real chance of persecution by reason of the perpetrators of persecution wrongly imputing a Convention characteristic to the person. The price that the person would be paying to avoid persecution in such a case would not be the sacrifice of an attribute of his or her identity that is protected by the Convention.
The issue was directly considered in ADL17 v Minister for Immigration & Anor [2020] FCCA 148 (“ADL17”). In ADL17, Judge Kelly also referred to Gageler J’s comments in SZSCA and aptly identified the rationale behind the principles in S395/2002 as follows:
The rationale for those principles is that the concealment of, relevantly, one’s membership of a particular social group as the price of avoiding persecution involves surrender of the very protection which is intended to be afforded by the Refugees Convention.[40]
[40] ADL17 v Minister for Immigration & Anor [2020] FCCA 148 at [100].
Having regard to the statutory context in which section 36(2)(aa) arises as compared to section 36(2)(a) and its associated provisions, Judge Kelly ultimately concluded that the reasoning in S395/2002 is confined to the determination of refugee status within the scope of section 36(2)(a).
In this case, whilst the applicants formally pressed this alternative aspect of ground one, no detailed submissions were made as to whether, and if so, how the principles in S395/2002 might apply to a consideration of section 36(2)(aa). Indeed, the applicants’ submissions in this regard were very limited.
In the applicants’ written submissions, they said:
If the applicants are somehow wrong in the above analysis, and there is some paradigm of analysis to be applied analogously to the S395 principle, the applicant submits that there is nonetheless jurisdictional error. Although it is unclear what such a paradigm might be, the applicants submit that engaging in lawful, or lawful and reasonable, conduct to reclaim their own land is not excluded from the test under s.36(2)(aa). In this case, reclaiming the land was lawful, or was lawful and reasonable conduct that would not be so excluded.[41]
[41] Applicant’s outline of submissions filed 24 June 2020 at paragraph 16.
This submission was not expanded upon or in any way clarified in oral submissions. Moreover, in their written reply, the applicants further stated:
The applicants and Minister are essentially ad idem on one question affecting the construction of s36(2)(a) – S395 does not apply directly.
… It is formally maintained, for of course, the parties’ position as to the construction of the provision cannot bind the Court.[42]
[42] Applicant’s outline of submissions in reply filed 10 July 2020 at paragraphs 1 and 2.
Having regard to the statutory framework, the distinction between the protection afforded by section 36(2)(a) and section 36(2)(aa), and the comments made by Gageler J in SZSCA, I agree with the analysis of Judge Kelly in ADL17, and conclude that the principles arising from S395/2002 do not apply to the consideration of a claim for protection under section 36(2)(aa).
For each of these reasons, ground one is not made out.
Ground two
The second ground of review was set out as follows:
The Second Respondent engaged in jurisdictional error as the reasoning is affected by illogicality or unreasonableness.
Particulars
(a)At paragraph 50 of the decision, the Second Respondent deals with the claimed shooting of the Applicant’s brother’s car in 2011.
(b)The Second Respondent accepted that the shooting took place, but found at paragraph 50 it was ‘speculative to associate this action with the Cosmic Town dispute’
(c)At paragraph 76 the Second Respondent refers to the shooting incident and expresses that the events ‘may or may not’ have been linked to the dispute. For the Second Respondent to accept that the shooting ‘may’ have been linked to the dispute, it is illogical to then say that the link was ‘speculative’.[43]
[43] Applicants’ amended application filed 24 June 2020 page 4.
The Tribunal deals with the ‘land grabber’ issue from paragraph [34] of its reasons.[44] Paragraph [45] is also relevant to this ground. There, the Tribunal noted that it was common ground there was an agreement reached to sell the ‘Cosmic Town Land’ to Mr J. The applicants claimed that Mr J ‘strong armed’ them into selling the land.[45]
[44] Court book page 885.
[45] Court book page 888.
The applicants put forward country information of corruption in Pakistan and argued that the police investigation and the High Court decision were ‘fabricated lies’.[46] Whilst accepting that there was a dispute over the applicants’ land, the Tribunal noted that it was not possible for it to determine the validity of the land claims or make comment on the validity of the judicial decisions made or police investigations undertaken.[47]
[46] Court book page 888 at paragraph 46.
[47] Court book page 888 at paragraph 46.
The Tribunal accepted that the applicants had been subjected to threats during the police investigation and the judicial process.[48] The Tribunal accepted that threats were received from Mr J[49] and Mr J’s son.[50]
[48] Court book page 888 at paragraph 47.
[49] Court book page 888 at paragraph 48.
[50] Court book page 888 at paragraph 49.
The Tribunal noted the applicants’ claim that there was an attempt on the first applicant’s brother’s life when someone tried to shoot at him whilst he was driving.[51] The Tribunal stated:
… I asked how he would have known that he was being shot at. The applicant said that a man fired at his brother’s car but all of the bullets missed the car entirely. I accept that the brother was driving in the vicinity of gunfire but find it speculative to associate this action with the cosmic Town dispute as Karachi is a city with gun violence. There is no basis upon which to speculate that it was for the purpose of intimidation as the purpose in such a context would need to be clearer to be intimidation.[52] (emphasis added)
[51] Court book page 888 at paragraph 50.
[52] Court book page 888 at paragraph 50.
It was submitted for the applicants that there was no proper or logical basis for that conclusion reached by the Tribunal.[53] This was particularly so in the context of the findings made in relation to:
a)the threats made to the applicants;
b)the fact that Mr J’s son had made threats; and
c)the fact that Mr J’s son had been acquitted from a murder charge as a result of corruption.[54]
[53] Court book page 888.
[54] Court book page 893 at paragraph 77
Moreover, the Tribunal stated that this particular event may or may not have been linked to Mr J, but to make the link would be speculative.[55]
[55] Court book page 893 at paragraph 76.
It is submitted for the applicants that the conclusion reached was not logical or reasonable. The applicants conceded that it was necessarily speculative to say that there was a connection between the shooting incident and the dispute with Mr J. The first applicant never said he knew for sure what the connection was but he did say there was a real chance that it was connected.
However, it was submitted that to reject this claim with the level of confidence required was illogical given the context of the seriousness of the dispute between the parties, the threats to which the first applicant and his family had been subjected and the subsequent finding that the applicants would experience a real chance of harm upon their return if they were to continue to press the ‘Cosmic Town Land’ claim.
It was submitted that a proper reading of the Tribunal’s reasons, particularly at paragraph [76],[56] discloses that, what the Tribunal actually did, was to say it could not make a finding to accept or reject the first applicant’s assertion of a connection with an adequate degree of confidence. In those circumstances, the Tribunal was required to proceed on the basis that it did have the claimed connection.[57] It was therefore submitted that, in failing to engage with the principle in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 (“the Rajalingam principle”), the Tribunal was led into error.
[56] Court book page 893.
[57] Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at [56].
In response, the first respondent submitted that no amount of elevation of the degree of the risk to which the applicants were exposed could overcome the Tribunal’s findings at paragraphs [79] to [86] of its decision record[58] which dealt with an entirely different issue (i.e. the absence of any refugee nexus). Those paragraphs dealt with the question as to whether the requirements of section 5J(1)(b) of the Act were met, namely, whether there was a real chance that if the applicants returned to Pakistan, they would be persecuted for one or more of the convention reasons.
[58] Court book pages 893 to 895.
For the following reasons I accept this submission.
At paragraph [84], the Tribunal accepted that the first applicant was a member of a particular social group, namely, the ‘upper middle class’, and that property ownership can be said to be a characteristic or attribute of that particular social group.[59]
[59] Court book page 895.
At paragraph [85], the Tribunal went on to consider whether the persecution feared was for reasons of membership of this group.[60] After discussing the basis of the harm feared by the applicants, the Tribunal concluded that there was no refugee nexus arising from the harm the first applicant feared from Mr J. At paragraph [86], the Tribunal then concluded that there was no refugee nexus for the reason of the state withholding protection.[61]
[60] Court book page 895.
[61] Court book page 895.
Therefore, even if the alleged shooting incident in paragraph [50][62] had been determined differently, it could not have impacted on the conclusion reached in paragraphs [85] or [86],[63] which was not dependent upon that finding. So much is clear from the following statement made by the Tribunal:
The applicant is facing harm from Mr J not for being a member of the upper middle class, but rather because he claims to own the same land to which the applicant has also staked a claim. The harm that arises does so on the basis of a personal property dispute. This can be seen another way. Had the applicant divested himself of the Cosmic Town property in 2009 or 2010 as was variously claimed, he would still remain a member of the upper middle class because of other assets, but would not be facing the threats he faces now … For this reason I find there is no refugee nexus arising from the harm he faces from Mr J.[64]
[62] Court book page 888.
[63] Court book page 895.
[64] Court book page 895 at paragraph 85.
The extent of the harm, and whether the harm included the first applicant’s brother having been shot at as alleged or not, could not create the refugee nexus which the Tribunal found was lacking.
Consequently, the finding made at paragraph [50][65] could not amount to a jurisdictional error.
[65] Court book page 888.
In any event, even if I were incorrect in this finding, I also find that the finding made by the Tribunal at paragraph [50][66] regarding the shooting incident was not illogical or unreasonable.
[66] Court book page 888.
The Tribunal accepted that:
a)the first applicant’s family had been subjected to various threats and intimidation;[67]
b)shots were fired at the first applicant’s mother’s house;[68]
c)the first applicant was kidnapped in about July 2009 for two days, and a ransom was demanded for his release on threat that he would be killed if the ransom was not paid;[69]
d)a break in occurred at the first applicant’s mother’s home;[70]
e)one of the people meting out these threats, Mr J’s son, had corruptively gotten off a murder charge;[71] and
f)this particular event may or may not have been linked to Mr J.[72]
[67] Court book pages 887 to 889 at paragraphs 43, 44, 47, 48, 49 and 55.
[68] Court book page 888.
[69] Court book pages 888 and 889 at paragraph 52.
[70] Court book page 889 at paragraph 53.
[71] Court book page 893 at paragraph 76.
[72] Court book page 893 at paragraph 76.
A fair reading of the Tribunal’s reasons indicate that there were a number of claims made by the first applicant and his family, including EJB18, that the Tribunal either did not accept, or did not accept had any link to Mr J. When read giving reference to the Tribunal’s reasons as a whole, and in particular the Tribunal’s reasons outlined in paragraph [50],[73] the findings in paragraph [76][74] simply indicate that the Tribunal had formed a view that it was not sufficiently satisfied that the shooting incident was linked to the ‘Cosmic Town Land’ dispute, or more specifically, Mr J.[75] A fair reading of that paragraph and the words ‘speculative’ makes it clear the Tribunal had formed the view that to make the link between the shooting and Mr J would be mere speculation.
[73] Court book page 888.
[74] Court book page 893.
[75] Court book page 893.
As noted by the majority in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559:
Conjecture or surmise has no part to play in determining whether a fear is well-founded. … a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.[76]
[76] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at [48].
Conjecture has no role to play in determining whether there exists a real chance of serious harm.
This was not a case in which the Tribunal was unable to form a view about whether there was a link between the shooting incident and Mr J so that the Rajalingam principle was engaged. It simply did not believe that there was such a link. In support of this finding, the Tribunal referenced country information, which evidenced that Pakistan has a high incidence of gun violence.
For each of these reasons, ground two is not made out.
Conclusion
As none of the applicants’ grounds of review have been made out, the application is dismissed with costs.
I certify that the preceding one hundred and one (101) paragraphs are a true copy of the reasons for judgment of Judge Mercuri
Associate:
Date: 27 November 2020
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