MZAJG v Minister for Immigration

[2016] FCCA 338

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAJG & ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 338

Catchwords:
MIGRATION – Judicial review of Tribunal decision affirming Delegate’s decision to refuse to grant applicants protection visas – whether Tribunal adopted a statistical mode of analysis to determine whether the Applicant faced a “real chance” or “real risk” of harm – whether Tribunal’s decision was unreasonable – whether the Tribunal failed to engage in whether the applicants faced future persecution on return to Pakistan.

Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83
DZADQ v Minister for Immigration and Border Protection [2014] FCA 754
MZAAD v Minister for Immigration and Border Protection [2015] FCA 1031
MZZIH v Minister for Immigration and Border Protection [2014] FCA 510
Plaintiff M196 of 2015 v Minister for Immigration and Border Protection [2015] HCATrans 240
Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473

First Applicant: MZAJG

Second Applicant: MZAJH

Third Applicant: MZAJI

Fourth Applicant: MZAJJ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1564 of 2014

Judgment of: Judge Jones

Hearing date: 25 September 2015

Date of Last Submission: 25 September 2015

Delivered at: Melbourne

Delivered on: 19 February 2016

REPRESENTATION

Counsel for the Applicants: Ms Levine

Solicitors for the Applicants: Victoria Legal Aid

Counsel for the Respondents: Mr Brown

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The name of the Second Respondent be amended to ‘Administrative Appeals Tribunal’.

2. The application for judicial review filed on 1 August 2014 and the amended application for judicial review filed on 16 September 2015 be dismissed.

3. The Applicants pay the First Respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1564 of 2014

MZAJG

First Applicant

MZAJH

Second Applicant

MZAJI

Third Applicant

MZAJJ

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By their amended Application filed on 16 September 2015, the Applicants seek judicial review of a decision of the (then) Refugee Review Tribunal (“the Tribunal”) made on 4 July 2014, affirming a decision of a delegate of the Minister for Immigration and Border Protection (“the Minister” dated 6 November 2013 refusing to grant the Applicants a Protection (Class XA) Visa (“the Visa”).

Background

1. The First Applicant (“the Applicant”) and the Second Applicant (“the wife”) are husband and wife, are citizens of Pakistan, and have each applied for the visa. The third and fourth Applicants are their children, both of whom were born in Australia. They have applied for the visa as members of the family unit of the Applicant and wife.

2. The Applicant arrived in Australia on 30 October 2005 on a temporary student visa. The Applicant and wife were married in 2008 in Pakistan and then travelled to Australia. The wife is a Shia Muslim and the Applicant converted from being a Sunni Muslim to a Shia Muslim, so that he could marry the wife. After their marriage, the Applicant and wife returned to live in Australia. Since their marriage, both the Applicant and wife have practised the Shia Muslim faith.

3. The Applicant’s claims to fear harm are set out in a statutory declaration provided with his visa application (CB 48 to 52) and may be summarised as follows:

   a)He was brought up as a Sunni Muslim and his family were and continue to be strict practising Sunni Muslims;

   b)he met his wife in Pakistan before travelling to Australia. They kept in close contact, their relationship developed and they decided they wanted to marry;

   c)his wife’s parents would not allow her to marry him unless he converted to become a Shia Muslim;

   d)to convert to the Shia Muslim faith he travelled back to Pakistan on 2 April 2008 and completed an affidavit confirming he had converted to the Shia Muslim faith. The wife's family required him to show them the affidavit before they would allow them to marry;

   e)they were married on 11 April 2008 at her home. His entire family attended the wedding. His parents and many of his family were not aware of his wife's religious faith or his conversion to the Shia Muslim faith. Their marriage was solemnised in accordance with the Shia Muslim faith. However, only his brother and sister were present from his family;

   f)his family discovered that he had converted to the Shia Muslim faith, when he and his wife attended his sister's wedding in Pakistan in May 2012. His older brother, a strict Sunni Muslim, discovered he was Shia by observing him praying in a different way to a Sunni Muslim and told his family members;

   g)following this discovery, the Applicant and his family were locked in a room in his family's home, whereupon his brother and a renowned fanatic Sunni Islamist, Mr A, abused and assaulted him. Mr A told him to leave his wife and children and convert back to the Sunni Muslim faith. He was given two days to consider this demand;

   h)at his sister's wedding Mr A threatened the Applicant that unless he divorced his wife and converted back to the Sunni Muslim faith, there would be serious consequences from the extremist Sunni group Sipah-Sahaba (“SeS”);

   i)two days later, four men, who were carrying weapons and were members of the SeS went to the wife's family home, and threatened her father and asked after the Applicant's whereabouts. As a result he, his wife and his children fled Pakistan;

   j)since arriving back in Australia, he has heard through friends and some family members that his name has been provided to the SeS;

   k)his family now refuse to speak to him and he is concerned that if he returns to Pakistan they would use the law against him and try to force him to convert back. His family is in the process of disowning him and he will not be entitled to anything in his father's will;

   l)Shia Muslims are a minority in Pakistan generally, as well as in Karachi (where the wife had always lived and the Applicant had lived for a period of time). Shia communities continue to be targeted and attacks on Shia individuals and leaders by extremist Sunni organisations and individuals is common;

   m)there are no safe places for him to live in Pakistan, as there are no significant areas where mainly Shia Muslims live, and he fears that he and his family will suffer hardship and retribution in any area in Pakistan as Shi'ite Muslims;

   n)in Khyber Paktunkhwa, people are killed when their names are identified as Shi'ite on the national identity card. His wife has a common Shia name and she can easily be identified as a Shia Muslim;

   o)he cannot move to Punjab, as the Lashkar-e-Jhangvi and Punjabi Taliban have recently engaged in a spree of killing Shias, wherever they identify them;

   p)Baluchistan is the worst province. This is where the most attacks on Shia Muslims occur; and

   q)sectarian attacks against Shia Muslims have been continuing.

4. The Applicant further claimed, in a supplementary submission to the delegate dated 30 October 2012, that he had been advised by his sister that Mr A had announced at a Mosque that he intended to slaughter the Applicant (CB 314 to 317).

5. In support of the claims to fear persecution, because of his religion and his status as a person who has converted from the Sunni to Shia faith, the Applicant provided a large number of news articles and official reports about the Shia and Sunni religions, as well as attacks on Shia Muslims (CB 85 to169, CB 240 to 257, CB 399 to 408, CB 444 to 445, CB 525 to 530, CB 532 to 534).

Tribunal Decision

1. The Tribunal commenced its decision record by setting out the relevant law, summarising the evidence it had regard to, the Applicant’s claims and country information it had identified with respect to the treatment of converts to the Shia Muslim faith, the treatment of Shia Muslims in Pakistan and Sunni/Shia violence in Pakistan, as well as returnees from the West.

2. The Tribunal then proceeded to set out its assessment of the Applicant's claims. It first considered the Applicant’s "Shia convert claims" as follows (CB 556 to 558 at [44] to [52]):

   44.    I accept that the applicant wife is a Shia and that the applicant was a Sunni who converted to the Shia faith and that they both practise the Shia faith here in Australia by attending the local mosque and religious gatherings.  The applicant was able to give a substantial amount of information about the Shia faith and rather convincingly explained the reasons for his conversion (i.e. his love of his wife and a general interest in the Shia faith).  The applicants have also provided documentation from the Panjtan Society and a friend that supports that they are Shias and a certificate that supports that the applicant has converted.

   45.    I do not however accept that the two married without the applicant’s family knowing that the applicant wife was a Shia or that the applicant had converted. I do so for the following reasons:

   ·   Both applicants gave evidence at the hearing that a large number of people (250) attended their wedding with about a 50/50 split from each family and that the wedding celebration lasted about 4-5 hours.  They also gave evidence of another event the next day in Larkhana where the applicant’s wife’s relatives attended another large dinner event hosted by the applicant’s family.  It is implausible and not credible in those circumstances that the fact that the applicant wife and her family were Shias would not have become apparent to the applicant’s Sunni relatives or that the applicants would have believed that they could have gotten away with the applicant’s family not discovering this fact given this level of contact. I have taken into the applicants’ comments at hearing that nobody discusses religion on these occasions and that most people consider it a personal issue, but I do not consider this to satisfactorily explain how with so many people from each family present that the fact would not soon be discovered.  I note that the applicant stated that it is mostly foreign based people who have issues with religion but this does not appear to be consistent with the applicant’s own claims that many of his family were strict Sunnis who were very seriously opposed to his marriage to a Shia women (sic) and his conversion. 

   ·   The applicant has claimed that his older brother was a strict Sunni with extreme views and that the landlord of the building of his family was a renowned Sunni fanatic.  In these circumstances I find it implausible and not credible that the applicant would return to his home in Pakistan and pray in a Shia fashion in view of others in the household.  When this concern was put to the applicants for comment he stated he did not do it (sic) purpose but it had to happen one day that they would find out.  The applicant wife commented that when one regularly prays they do it out of habit.  I have considered these responses but I do not accept that they satisfactorily explain why the applicant would openly pray in a Shia manner with his wife and children around if he was in such a hostile and dangerous environment as he had claimed.

   46.    Given these very substantial concerns with the applicants’ credibility, I do not accept that the applicant’s family did not know that the applicant wife was a Shia or that he had converted.  I do not accept that the applicant did not attend his father’s funeral in March 2012 because of a fear of being persecuted and of having to perform Sunni rituals.

   47.    I do not accept that in May 2012 when the applicant travelled to Pakistan to attend his sister’s wedding, his oldest brother noticed that the applicant was praying in a different manner and confronted him.  I do not accept that the brother and the landlord are Sunni fanatics with links to extremist groups and that with family members they locked the applicants in a room.  I do not accept that the applicant was told to convert back to the Sunni religion and leave his wife and child (sic). I do not accept that he was given two days to think this over and he was evicted from the family house.  I do not accept that his wife and children were prevented from attending his sister’s wedding.  I do not accept that at the wedding, the landlord warned him that if he did not convert back and divorce his wife there would be severe consequences from him and his group SeS. 

   48.    I do not accept that members of SeS carrying weapons came to the applicant wife’s parents (sic) home and enquired with his father-in-law about the location of the applicants.  I do not accept that the applicant was not there and the father-in-law lied and said they were not staying with him.  I do not accept that the men threatened the father-in-law and said they would return.  I do not accept that since he has arrived back in Australia the applicant has heard through some friends and some family members who are still speaking to him that his name has been provided to SeS.  I do not accept the landlord announced publicly at a mosque that he would not perform an animal sacrifice ritual until the applicant had been sacrificed as an infidel.  I do not accept that the applicants are of adverse interest to anyone in Pakistan.

   49.    In making these findings, I have taken into account the copy of statement by the applicant’s wife’s sister in support of their claims but given the very significant concerns I have about the credibility of their claims, I have given this only limited weight in making my assessment.

   50.    I accept that the applicant has converted to the Shia faith and I have taken into account that there are some reports of converts being targeted as indicated in the news articles provided by the applicant and referred to by the agent in her submissions.  The country information also indicates that societal attitudes and attitudes of members of the Sunni and Shi'a communities towards conversion to Shi'ism vary hugely from family to family, community to community.  I accept that extremist Sunnis groups and their supporters would oppose the change in affiliation strongly and that even moderate families would have some objection to the conversion.  I have taken into account that DFAT have said that there are no legal barriers in Pakistan on conversion between Sunni and Shia sects and DFAT is not aware of any official discrimination should an individual wish to convert.  Based on this DFAT information I do not accept that the applicant will be (sic) face blasphemy charges by the state.   Considering all this information and my findings set out above that the applicant’s family were aware that the applicant wife was a Shia and that the applicant had converted and given that the applicant’s family attended their wedding in large numbers, I do not accept that members of the applicant’s family had a strong objection to these matters or that his parents were strict Sunnis who would not let him play with Shias when he was a child.  Given the limited number of reports that indicate that Sunni converts to the Shia faith have been targeted and given the applicant’s family’s attendance at the wedding, I find that the chance or risk that the applicant will be seriously harmed or significantly harmed by his family members, the state or anyone else in Pakistan, including Sunni extremist groups, is remote.

   51.    Based on the independent country information and their individual circumstances, I find that that (sic) the applicant does not face a real chance of persecution in the reasonably foreseeable future from Sunni extremist groups or anyone else because of his conversion, including as a member of a particular social group consisting of “converts from the Sunni to the Shia Muslim faith” or any other Convention reason.  I further find that the other applicants do not face a real chance of persecution in the reasonably foreseeable future from Sunni extremist groups, the state or anyone else on account of their membership of a particular social group consisting of his family.

   52.    Based on the country information and their individual circumstances, I find that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to Pakistan that there is a real risk that they will suffer significant harm at the hands of Sunni extremist groups, the state or anyone else on this basis.

3. The Tribunal next considered the "General Shia claims" as follows (CB 558 to 559 at [53] to [55]):

   53.    I have accepted that the applicants are Shia Muslims and that the wife has a name that identifies her as a Shia.  I accept that the applicant’s father-in-law was present at a Shia procession in December 2009 which was bombed and in which over 40 people were killed as country information does support that incidents of this nature do occur in Pakistan.  I accept that when the applicants return they will go to Shia mosques and religious gatherings. I have taken into account the above reports (and those referred to in the agent’s submission) that indicate attacks on Shias do occur in Pakistan and in Karachi and that there is a high level of generalised violence in Karachi.  I have taken into account reports that militants have conducted large-scale attacks on Shia mosques and religious processions and Shia enclaves in Karachi.  However as put to the applicants for comment at the hearing, this needs to be considered in the context of country information that around 15-30% of the (sic) Pakistan’s very large population of 190 million are Shias and country information that around 30% of Karachi’s very large population of 18 million are Shias. The UNHCR have said that members of the Shia community in urban centres may depending on their individual circumstances (my italics) be in need of international refugee protection on account of their religion and/or (imputed) political opinion.  The UNHCR did not say that all Shias in Pakistan are in need of international refugee protection.  DFAT have commented that there are no legal restrictions on freedom of religion for Shias in Pakistan.  They have stated that there are no laws or Government policies that discriminate against Shias (i.e. ‘official’ discrimination) and that broadly speaking, there is little community prejudice (i.e. societal discrimination) that would limit opportunities for Shias in daily life.  Other than the claims which I have rejected, the applicants have not claimed that they have been prevented from practising their Shia faith in Pakistan or that they have suffered any negative consequences as a result.

   54.    Based on the independent country information and their individual circumstances, I find that that (sic) the applicants do not face a real chance of persecution in the reasonably foreseeable future from Sunni extremist groups, the state or anyone else because of their Shia religion and actual or imputed political opinion.

   55.    Based on the country information and his individual circumstances, I find that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to Pakistan that there is a real risk that they will suffer significant harm at the hands of Sunni extremist groups, the state or anyone else on account of their religion.

Grounds of judicial review

Ground One

1. The Applicants first amended ground of judicial review is as follows:

   The Tribunal applied the wrong test and/or asked itself the wrong question with respect to the issue of whether the First Applicant faced a “real chance” of persecution from Sunni extremists in Pakistan by reason of being a convert to the Shia Muslim religion.

   Particulars

   (a)     The Tribunal accepted that the First Applicant was a convert from the Sunni Muslim religion to the Shia Muslim religion.

   (b)     The Tribunal accepted that there are some reports of converts being targeted [in Pakistan] as indicated in the news articles provided by the First Applicant and referred to by his legal representative in submissions.

   (c) The Tribunal also accepted that “extremist Sunnis groups and their supporters would oppose the change in affiliation [from Sunni Muslim to Shia Muslim] strongly and that even moderate families would have some objection to the conversion”.

   (d)     However, in considering whether these accepted facts translated into the First Applicant facing a real chance of persecution from Sunni Muslim groups in Pakistan by reason of being a convert, the Tribunal applied a numerical approach, assessing the risk against the “limited number of reports” of converts being targeted.

   (e) In adopting this approach, the Tribunal failed to assess and/or to ask whether there was a real chance of persecution faced by the First Applicant in his particular circumstances.

1. This ground is directed to the Tribunal's reasoning and findings with respect to the Applicant’s claim that, as a Sunni Muslim convert to the Shia Muslim faith, he fears persecution generally by Sunni extremist groups, if he returns to Pakistan.

Submissions

1. The Applicants accept the Tribunal made adverse findings regarding his claims to experience past persecution. It is the Tribunal's assessment of the risk of persecution as a convert from Sunni extremists, which the Applicants say, is the focus of their claim that the Tribunal's approach constituted jurisdictional error.

2. The Applicants submit that the Tribunal accepted that the Applicant made this claim at [29] of its decision record, where it stated (CB 550):

   It was submitted that the applicant was also at risk for his membership of a particular social group as a convert from the Sunni to the Shia Muslim faith.

3. The Applicants argument is that the Tribunal accepted that:

   a)the Applicant was a Sunni Muslim, who converted to the Shia Muslim faith: (CB 556) at [44];

   b)there were "some reports of converts been targeted [in Pakistan] as indicated in the news articles provided by the applicant and referred to by the agent in her submissions": (CB 557 at [50]); and

   c)extremist Sunni groups and their supporters "would oppose the change in affiliation strongly and that even moderate families would have some objection to the conversion”: (CB 557 at [50]).

4. Nevertheless, the Tribunal found (CB 557 at [50]):

   “Given the limited number of reports that indicate that Sunni converts to the Shia faith have been targeted and given the applicant’s family's attendance at the wedding, I find that the chance or risk that the applicant will be seriously harmed or significantly harmed by his family members, the state or anyone else in Pakistan, including Sunni extremist groups, is remote.”

   (their emphasis)

5. The Applicants submit that this ultimate finding, as to the risk of harm the Applicant would face if returned to Pakistan, gives rise to jurisdictional error, because the Tribunal failed to engage in its statutory function of assessing whether there was a real chance of persecution, taking into account the Applicant’s particular circumstances. Instead, the Applicants submit the Tribunal relied on a limited number of reports of attacks, and thereby engaged in a general numerical approach to the Applicant’s claim to fear persecution from Sunni extremists by reason of being a Shia convert.

6. It is argued that, although the Tribunal referred to the Applicant’s "individual circumstances" in its concluding statement at [51] (CB 558), this does not overcome the lack of analysis by the Tribunal regarding the Applicant’s particular circumstances, which is evident in the previous paragraph of its decision record. In relation to this, the Applicants rely on the decision in Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83 (“Ayoub”) at [46], where the Full Court said:

   "Mere advertence to a matter required to be taken into consideration may not be sufficient to establish that it has been properly considered…"

7. The Applicants submit that the numerical mode of analysis engaged in by the Tribunal, gives rise to an inference that the Tribunal did not lawfully consider whether this individual Applicant, personally, as distinct from being a member of any class, faced a real chance of persecution in Pakistan from Sunni extremist groups by reason of being a Shia Muslim convert.

8. They submit that this is an error of the kind identified in Appellant S395/2002 v Minister for immigration and Multicultural Affairs (2003) 216 CLR 473, where McHugh and Kirby JJ stated at [58]:

   “Whether members of a particular social group are regularly or often persecuted usually assists in determining whether a real chance exists that a particular member of that class will be persecuted. Similarly, whether a particular individual has been persecuted in the past usually assists in determining whether that person is likely to be persecuted in the future [24]. But neither the persecution of members of a particular social group nor the past persecution of the individual is decisive. History is a guide, not a determinant. Moreover, helpful as the history of the social group may be in determining whether an Applicant for a protection visa is a refugee for the purpose of the Convention, its use involves a reasoning process that can lead to erroneous conclusions. It is a mistake to assume that because members of a group are or are not persecuted, and the Applicant is a member of that group, the Applicant will or will not be persecuted. The central question is always whether this individual applicant has a "well-founded fear of being persecuted for reasons of ... membership of a particular social group".”

9. The Applicants rely on the following decisions of single members of the Federal Court of Australia for the proposition that reliance on the numerical approach in assessing an Applicant's risk of persecution for a convention reason, gives rise to jurisdictional error.

10. In MZZIH v Minister for Immigration and Border Protection [2014] FCA 510 (“MZZIH”) at [12], Davies J stated:

    “The reasoning of the Tribunal focused only on the remoteness of an individual Shia Moslem been targeted and in so doing, failed to consider the particular circumstances of the appellate (sic) in forming the opinion that he could relocate to Peshawar to avoid the risk of persecution for reasons of religion…" 

11. In DZADQ v Minister for Immigration and Border Protection [2014] FCA 754 (“DZADQ”) at [65], Mansfield J said:

    “The Tribunal was satisfied that the appellant was as a Shia Muslim at risk of serious harm by reason of his religion. The Tribunal however classified that risk as being too remote. In my view, the essential link in the chain of reasoning connecting the two findings was missing. Besides quoting that there are over 40 million Shia Muslims in Pakistan, the Tribunal, in its published reasons, did not consider the evidence that underpinned its ultimate finding that the risk was remote. In my view, its task was not done by the numerical analysis. It should have considered the appellants’ particular circumstances. If it be the case that there is nothing to distinguish the appellant from other Shia Muslims in Pakistan, provided the country information (common to both the delegate and the Tribunal) stands, it is hard to see how the conclusion of the Tribunal is sustainable. If there were some small or local sectarian violence, the picture the country information indicated would not be so dramatic or compelling. To the contrary, the picture appears to be that it is coordinated, pervasive and effective, and the Taliban are presented as a cogent and broadly spread instrument of its application. It should not be adequate, in the face of such data, to say in effect that although a significant number of Shia Muslims will be severely harmed or killed by that pervasive targeted violence because you as a target group are numerous, the chances of any particular one of you being as harmed or killed is not a real one or is fanciful.

12. The Applicants submit that the Tribunal failed to consider the particular circumstances of the Applicant, such as, the claim that the wife’s name was readily identifiable as a Shia Muslim, the considerable time the Applicant had spent in Australia and his two children, who were born in Australia.

13. The Minister does not disagree with the proposition that an approach to the Applicant’s claim to fear persecution from Sunni extremists as a convert which focuses solely on a numerical analysis, will give rise to jurisdictional error. However, the Minister submits that the Applicant has impermissibly resorted to selecting particular extracts from the Tribunal's decision record, without regard to the totality of its decision, including the assessment of the Applicant’s claims.

14. The Minister submits that the Tribunal's assessment of the Applicant’s claims to past persecution were relevant to its assessment of the general claim, as they gave rise to a particular profile of the Applicant.

15. Reading the decision record as a whole, the Minister submits that the Tribunal's findings at [50] of its decision record were broad excursions into country information, and not findings about the Applicant in particular. This is evident when the Tribunal refers to reports of converts being targeted. Further, it is pointed out, the statement that extremist Sunni groups and their supporters would oppose the change in affiliation is located in the extract from the Immigration and Refugee Board of Canada, set out at [31] (CB 551).

16. The Minister submits that, in circumstances where the Tribunal had made adverse findings on the Applicants’ claims relevant to his particular profile; namely, that his family disapproved of his conversion to the Shia Muslim faith and his marriage, and that he was threatened and harmed by a well-known Sunni extremist, Mr A, there was nothing in particular about the Applicant’s profile which would assist the Tribunal’s assessment of the risk of persecution of the Applicant as a convert. The Minister submits that, in the absence of a particular profile, other than his status as a convert, the Tribunal was left with a bare claim. Thus, the Tribunal properly considered country information, on the extent of attacks on converts by Sunni extremists in deciding what the risk of persecution was if the Applicant returned to Pakistan.

17. The Minister relies on two recent decisions. The first is contained in the transcript of proceedings dated 17 September 2015 of an interlocutory decision of a single member of the High Court in Plaintiff M196 of 2015 v Minister for Immigration and Border Protection [2015] HCATrans 240 (“M196”). In these proceedings, the Plaintiff attacked the delegate’s decision, that the Plaintiff would not be exposed to a real chance of persecution in areas within Pakistan, other than Balochistan, on the sole basis of an impermissible “statistical” mode of analysis. Justice Gordon rejected this contention stating:

    “The findings of the delegate must be read in the context of the whole record of her decision. Contrary to the plaintiff’s contentions, the delegate correctly applied the “reasonable relocation” test. As the extracts from, and the analysis of, the delegate’s decision reveals, the delegate addressed the risk of persecution to the plaintiff in two ways- by reference to Shias and Hazaras in Pakistan generally, and by considering the personal circumstances and profile of this individual plaintiff.

    The “statistical” analysis of the number of Shias and Hazaras in Pakistan was a, not the sole, factor considered by the delegate. The country information referred to by the delegate establish that most Hazaras comprise the ethnic minority of the Shia population in Pakistan. The references in the delegate’s decision to the number of Hazaras living in Pakistan were inconsistent…

    Despite those differences, the delegate’s decision records that the delegate considered both the number of Shias, on account of religion, and Hazaras on account of race, in Pakistan as a factor to be taken into account when considering whether this individual plaintiff faced a real chance of persecution if returned to Pakistan. That is not impermissible. There is no prescribed method for assessing that question.”

18. The second decision referred to is MZAAD v Minister for Immigration and Border Protection [2015] FCA 1031 (“MZAAD”). At [48] Justice Beach stated:

    “There is an air of unreality to the appellant’s submission suggesting that the Tribunal engaged in an arithmetical exercise only. First, the Tribunal quite logically referred to the past experience of both the appellant and his brother as part of the foundation to predict future risk. That is an unremarkable exercise. For the Tribunal to refer to the frequency of use of the relevant road(s) was appropriate and perhaps necessary. Second, the Tribunal considered the country information. Those at risk of generalised violence had a different profile to the appellant. Third, the Tribunal had rejected any particular selection of the appellant because of his status as Tajik or Shia. In my view there is nothing to suggest that the Tribunal only looked at a statistical or arithmetic approach. It contextualised any frequency analysis with reference to the appellant and more general circumstances. More generally, the Tribunal’s reasons at [47] had to be read in context, including the reasons at [28], [31] and [32]”.

Consideration

1. In MZAAD, Justice Beach, in considering the Appellant’s submission as to the “mere statistical exercise” engaged in by the Tribunal, said as follows (at [41] to [43]):

   41.    “First, in considering a “real risk” or a “real chance”, one is looking into the future and making a prediction relevant to the context of the issue being posed. In undertaking that assessment, past events may be a guide to the future. But how probative that guide is may depend on various matters. As was said in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574 and 575 in the joint reasons:

   The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability — high or low — of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or Tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or Tribunal has no rational basis for determining the chance of an event in that field occurring in the future.

   Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.

   42.    Second, statistics on past events may have some probative value for predictive purposes. If authority is needed for the obvious, it may be found in Minister for Immigration and Multicultural Affairs v Respondents S152/2003[2004] HCA 18; (2004) 222 CLR 1 at [80] where McHugh J stated:

   Statistical percentages based on experience of past events are usually an accurate guide to the chance of similar events occurring in the future. Insurance companies and financial institutions, for example, bet heavily on such statistical percentages when estimating the chance of future events occurring. But a percentage chance based on the results of a number of events, by itself, seldom throws light on whether a future event is likely to affect any particular person, place or property. To make the percentage useful for predicting the occurrence of an individual event, the predictor has to know a good deal about the inputs that form the basis of the statistical calculation. The predictor must know, for example, the source and nature of the inputs, the period and the area over which they were collected and their significance for the subject of the prediction.

   43.    Third, notwithstanding that a consideration of past events and some statistical or computational approach may have some probative value, yet it is inappropriate to confine the evaluative process in assessing “real risk” or “real chance” to only such a data set or quantitative analysis (see DZADQ v Minister for Immigration and Border Protection (2014) 143 ALD 659 at [61] and [65] per Mansfield J).

2. There is no doubt that, in deciding whether a decision of the Tribunal gives rise to jurisdictional error, this Court must have regard to the whole of the decision record, and not confine its determination to particular extracts.  This is expressed in Ayoub at [47]:

   “The reasons provided in every case must each be considered by reference to the facts of each particular case and must all be construed in a practical and common sense manner and not with "an eye keenly attuned to the perception of error": cf Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271 to 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.

3. Secondly, it is permissible for a Tribunal to have regard to the past experiences of an Applicant claiming persecution, as the foundation to predict future risk. It is apparent from the authorities, that it is an accepted principle, that the assessment of the past experiences of an Applicant will inform the Tribunal’s decision as to the Applicant’s particular profile and the impact of this profile with respect to his claims of  persecution generally.

4. Further, it is also permissible for a Tribunal to have regard to country information, including any information that will bear on an Applicant’s general claim to fear persecution on a convention ground. In this respect, it is not erroneous to have regard to statistical information. What is impermissible is for the Tribunal, in the evaluation of the “real risk” or “real chance”, to have regard only to such data.

5. It is apparent from the authorities referred to earlier, that in the assessment of a “real risk” or “real chance”, the Applicant’s profile, in the context of other information or data, is a prerequisite to the Tribunal undertaking and completing its statutory task.

6. In DZADQ, the Tribunal found that the Applicant was at risk of significant harm, because of his religion. The impugned part of its decision was its alleged failure to consider, in deciding whether the Applicant could reasonably relocate elsewhere in Pakistan, other country information, relying solely on the numbers of Shia Muslims in Pakistan.

7. In MZZIH, the flaw identified in the Tribunal’s approach was that, in deciding whether the Applicant could reasonably relocate elsewhere in Pakistan, the Tribunal considered only the numerical incidence of sectarian attacks on Shia Muslims. The Tribunal failed to consider whether the Applicant’s ethnicity as a Hazara affected his susceptibility to persecution elsewhere.

8. In M196, Justice Gordon noted that the delegate found that there was a real chance that the Plaintiff would be subject to persecution, due to his Shia Muslim religion and Hazara race, if he were to return to Balochistan. Her Honour further noted that the delegate had accepted there was a lack of security in several regions in Pakistan and consequently accepted the Plaintiff’s claim that some localities were too dangerous to be considered for relocation. However, the delegate went on to state there are places in Pakistan “where every aspect of life is not overwhelmed by conflict and a fear of extremist groups” and, further, that whilst extremists have been known  to have a presence in cities all over Pakistan, the violence tends to be directed against people with a profile. Against that background, the delegate referred to country information, noting the attacks on Shia Mosques, processions and prominent Shia people, and the likely ongoing instability. However, having considered the large numbers, in terms of population involved relative to the numbers killed or injured and the Plaintiff’s profile, the delegate found that the chance that the Plaintiff would be seriously harmed due to his religion or race was remote. The delegate did not accept that the Plaintiff “holds a profile outside of this home region that distinguishes him from the wider Hazara or Shia community.” The delegate did not accept that any profile held by the Plaintiff or his family was likely to place the Plaintiff at risk of harm outside his home region.

1. In MZAAD, the Tribunal likewise considered the Applicant’s profile and found that as he had no association with the Government or the security forces in Afghanistan, that he did not have a profile that would draw the attention of the Taliban or any other group: see [19] in MZAAD. The Tribunal also did not accept the Applicant’s claims his brother was kidnapped, because of his religion or ethnicity: see [20] to [21] in MZAAD.

2. Turning to the Tribunal’s decision record as a whole, the Tribunal’s assessment of the Applicant’s claims first commenced with the assessment of the “Shia convert claims” and then proceeds to consider the “General Shia claims”. Under the former heading, the Tribunal commenced by considering the profile of the Applicant. The Tribunal accepted that the wife was a Shia and that the Applicant was a Sunni, who converted to the Shia faith, and that they both practice their faith in Australia. It did not, however, accept the remainder of the Applicant’s claims that bear on his particular profile as a Shia convert. It did not accept that:

   a)he was married without his family knowing that his wife was a Shia or that he had converted;

   b)when he returned to Pakistan in 2012 for his sister’s wedding, his brother noticed he was praying in a different manner and confronted him;

   c)his brother and the landlord (Mr A) are Sunni fanatics, with links to extremist groups, and that they locked the Applicants in a room;

   d)the Applicant was told by Mr A to convert back to the Sunni religion and leave his wife and children;

   e)his wife and children were prevented from attending his sister’s wedding;

   f)Mr A warned the Applicant that if he did not convert back to the Sunni faith and divorce his wife, there would be severe consequences from him and his group,  SeS;

   g)members of the SeS, carrying weapons, came to his wife’s parent’s home and asked about his location;

   h)those men threatened his father-in-law and said they would return;

   i)since he returned back to Australia, the Applicant has heard from family members, who are still speaking to him, that his name has been provided to the SeS; and

   j)Mr A announced publicly at a Mosque that he would not perform an animal sacrifice ritual until the Applicant had been sacrificed as an infidel.

3. The Tribunal further did not accept that the Applicants are of adverse interest to anyone in Pakistan.

4. It is to be inferred from these findings that, other than his status as a Sunni convert to the Shia faith, the Tribunal did not accept any other claim made by the Applicant, which bore on his particular profile. This is the context in which paragraph [50] of its Decision Record is to be considered.

5. The Tribunal accepted his status as a convert to the Shia faith, and then took into account news articles and country information regarding reports of converts being targeted, attitudes of Sunni and Shia communities towards conversion, the stance of extremist Sunni groups to conversion and the legal position with respect to conversion.

6. The Tribunal found that the Applicant’s family did not have a strong objection to his conversion.

7. In this context, the Tribunal referred to the limited number of reports of targeting of Sunni converts to the Shia faith and the Applicant’s family’s attendance at the wedding.

8. It may be said that the paragraph which is impugned by the Applicant is somewhat clumsy. However, read in context, I am satisfied that the Tribunal was merely summarising the matters it had regard to in its ultimate finding that “the chance or risk that the applicant will be seriously harmed or significantly harmed by his family members, the state or anyone else in Pakistan, including Sunni extremist groups, is remote.”

9. I agree with the Minister’s submission that given the Tribunal rejected the Applicants claims (as set out in [37]), there was nothing about his profile (other than his status as a convert) that was relevant or dispositive in the Tribunal’s evaluative process, with respect to his claim to fear harm, because of his membership of a particular social group of converts from the Sunni to Shia faith. In this context, the Tribunal’s statement at [51] that “Based on the independent country information and their individual circumstances” is not a mere incantation, but rather a reference to a substantive consideration in the preceding paragraphs.

10. I should say that it is not clear how the examples of the Applicant’s particular circumstances, which the Applicant submitted were relevant and not considered, are indeed relevant to his profile for the purpose of his claim to fear persecution as a convert from extremist Sunni groups. The fact that his wife’s name is a common Shia name, is one which is considered appropriately, in my view, by the Tribunal under the heading, “General Shia claims”. Likewise, the fact the Applicant and his family have been in Australia for some time was appropriately considered under the heading “Returnees from the West claims”.

11. I am not satisfied that the Tribunal asked itself the wrong question or applied the wrong test. I find that there is no jurisdictional error on this ground.

Ground Two

1. The Applicant’s second amended ground of judicial review is as follows:

   The Tribunal’s findings with respect to the risk of persecution faced by the First Applicant from Sunni extremists by reason of being a convert to the Shia Muslim religion were affected by legal unreasonableness.

   Particulars

   (a)     The Tribunal accepted that the First Applicant was a convert from the Sunni Muslim religion to the Shia Muslim religion.

   (b)     The Tribunal also accepted that “extremist Sunnis groups and their supporters would oppose the change in affiliation [from Sunni Muslim to Shia Muslim] strongly and that even moderate families would have some objection to the conversion”.

   (c) However, the Tribunal concluded on the basis of a “limited number of reports” of converts being targeted that the chance of persecution faced by the First Applicant was “remote”.

   (d)     The Tribunal’s finding that the First Applicant faced only a “remote” risk of persecution from Sunni groups by reason of his conversion lacks the necessary logical pathway or an evident and intelligible justification with respect to its earlier finding that extremist Sunni groups would strongly oppose the conversion.

2. This ground also focuses on the Tribunal’s finding with respect to the Applicant’s claim that he feared persecution as a convert to the Shia faith from extremist Sunni groups.

3. The Applicant’s submission is as follows:

   26.    In this case, the Tribunal accepted that “…extremist Sunnis groups and their supporters would oppose the change in affiliation strongly…” There was an obvious logical inference to be drawn by the Tribunal that, by virtue of their “extremism” alone, “extremist” Sunni groups may well show their strong opposition to conversion by subjecting individual converts such as the Applicant to harm. The Tribunal did not engage in any way with these logical consequences of its finding as to the stance adopted by extremist Sunni groups towards conversion. Instead, the Tribunal concluded that the risk of harm to the First Respondent was “remote” on the basis that there was only a “limited number of reports” as to Shia Muslim converts being targeted.

   27.    Given the Tribunal’s earlier finding as the strong stance that “would” (as opposed to “might”) be adopted by extremist Sunnis in Pakistan against Shia Muslim converts, the Tribunal’s conclusion that the First Applicant, a Shia Muslim convert, still faced only a “remote” risk of persecution lacks the necessary logical pathway or an evident and intelligible justification.

   (their emphasis)

   (footnotes omitted)

4. In Ayoub, the Full Court stated at [52]:

   The irrationality or unreasonableness of an administrative decision, it may be accepted, may provide a basis on which a decision may be set aside upon an application for judicial review. It may further be accepted that the legal standard of unreasonableness is not to be confined to those decisions which are “irrational” or “bizarre”: Minister for Immigration and Citizenship v Li [2013] HCA 18, (2013) 249 CLR 332. Hayne, Kiefel and Bell JJ thus observed:

   [68] Lord Greene MR’s oft-quoted formulation of unreasonableness in Wednesbury ([1948] 1 KB 223 at 230) has been criticised for “circularity and vagueness”, as have subsequent attempts to clarify it. However, as has been noted, Wednesbury is not the starting point for the standard of reasonableness, nor should it be considered the end point. The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision — which is to say one that is so unreasonable that no reasonable person could have arrived at it — nor should Lord Greene MR be taken to have limited unreasonableness in this way in his judgment in Wednesbury. This aspect of his Lordship’s judgment may more sensibly be taken to recognise that an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified.

   Their Honours went on to conclude:

   [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion “if upon the facts [the result] is unreasonable or plainly unjust”. The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.

5. In respect of this ground of judicial review, I agree with the submissions of the Minister, that having regard to the decision record as a whole, it is apparent that:

   a)the Tribunal rejected the Applicant’s claims, other than his status as a Sunni convert to the Shia faith;

   b)it did not accept that the Applicants were of adverse interest to anyone in Pakistan;

   c)it took into account country information in relation to his claim he would be persecuted by Sunni extremists as s convert to the Shia faith; and

   d)it concluded that the chance the Applicant would be seriously harmed or significantly harmed by Sunni extremist groups was remote.

6. The mere fact that in referring to country information, the Tribunal accepted reports of converts being targeted and that extremist Sunni groups and their supporters would oppose the change in affiliation strongly, does not, as the Applicant appears to suggest, result in the inevitable conclusion that the Applicant would be seriously harmed or significantly harmed.

7. As I have stated earlier, the Tribunal in its evaluative process, made findings in respect of the Applicant’s personal circumstances and had regard to country information. The approach taken did not lack an evident or intelligible justification.

8. I find that no jurisdictional error arises on this ground.

Ground Three

1. The Applicant’s third amended ground of judicial review is as follows:

   The Tribunal applied the wrong test with respect to the issue of whether the Applicants faced a “real chance” of persecution in Pakistan in the future by reason of being Shia Muslims.

   Particulars

   (a)     The Tribunal accepted that the Applicants are practising Shia Muslims.

   (b)     The Tribunal’s conclusion that the Applicants did not face a real risk of persecution in Pakistan by reason of being Shia Muslims was based on its earlier finding that the Applicants did not claim that “they have been prevented from practising their Shia faith in Pakistan or that they have suffered any negative consequences as a result”.

   (c) In basing its conclusion as to the risk of future persecution faced by the Applicants on an absence of claimed past persecution, the Tribunal failed properly to apply the forward-looking “real chance” test.

2. This ground is concerned with the Tribunal’s approach to the Applicants’ claim to fear persecution by reason of their religion; namely, followers of the Shia Muslim faith.

3. The gist of the Applicants’ complaint is that, in its decision, the Tribunal focused only on the Applicants’ claims of past persecution, without engaging in an evaluation of the risk of persecution faced by the Applicants in the future, if they returned to Pakistan.

4. The Applicant submits that this is evident from the reasoning of the Tribunal at the conclusion of paragraph [53] that, “Other than the claims which I have rejected, the applicants have not claimed that they have been prevented from practising their Shia faith in Pakistan or that they have suffered any negative consequences as a result.”

5. The Applicants’ submission in support of this ground is similar to that advanced in relation to Ground One. The Applicants submit that the Tribunal failed to have regard to the particular profile of the Applicants, but rather fastens onto the country information for its ultimate conclusion.

6. In my opinion the Applicants’ submission is misconceived.

7. Read in context, paragraph [53] sets out the various claims and findings and country information, which the Tribunal had regard to in forming its ultimate finding at paragraph [54].

8. I am satisfied that the Tribunal first had regard to relevant aspects of the profile of the Applicants, it had hitherto not dealt with. The Tribunal accepted that the wife has a name that identifies her as a Shia Muslim. It also accepted that “when the applicants return they will go to Shia mosques and religious gatherings”: (CB 558 at [53]). I note that these findings are peculiarly relevant to a consideration of persecution in the future. The Tribunal then proceeded to consider reports (including those provided by the Applicants) and country information regarding violence perpetrated on Muslims following the Shia faith. It then made the unremarkable observation that setting aside the claims, which it had earlier rejected (see [39] above), the Applicants had not claimed they had been prevented from practising their Shia faith in Pakistan or suffered any negative consequences as a result.

9. Having set out these matters, the Tribunal then made its ultimate finding, commencing with the statement, “Based on the independent country information and their individual circumstances”.

10. I can see no error in the approach adopted by the Tribunal. In my opinion, it conforms, in all respects, to the proper approach identified by his Honour Justice Beach in MZAAD, when he said:

    “First, in considering a “real risk” or a “real chance”, one is looking into the future and making a prediction relevant to the context of the issue being posed. In undertaking that assessment, past events may be a guide to the future” (see [30] above).

11. I find that no jurisdictional error arises on this ground.

Conclusion

1. For the reasons set out in this judgment, I order that the Applicants’ application and amended application for judicial review be dismissed, with costs.

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

Associate: 

Date:  19 February 2016