MZAKC v Minister for Immigration

[2016] FCCA 834

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAKC v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 834

Catchwords:
MIGRATION – Refugee Review Tribunal – protection visa – complementary protection – whether the Tribunal made the error identified in DZADQ v Minister for Immigration and Border Protection [2014] FCA 754, namely, relying on a statistical analysis rather than the applicant’s individual circumstances.

Legislation:
Migration Act 1958 (Cth), ss.36(2)(aa), 424(1)

Cases cited:
MZZQH v Minister for Immigration and Border Protection [2014] FCCA 241
DZADQ v Minister for Immigration and Border Protection (2014) 143 ALD 659, [2014] FCA 754
Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248, (2010) 119 ALD 26, (2010) 274 ALR 438, [2010] FCAFC 145
Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473, (2003) 78 ALD 8, (2003) 78 ALJR 180, (2003) 203 ALR 112, [2003] HCA 71
Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1, (2004) 77 ALD 296, (2004) 78 ALJR 678, (2004) 205 ALR 487, [2004] HCA 18
Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164, (2010) 119 ALD 446, (2010) 85 ALJR 306, (2010) 273 ALR 122, [2010] HCA 48
NBMZ v Minister for Immigration and Border Protection (2014) 220 CFCR 1, (2014) 138 ALD 495, (2014) 307 ALR 49, [2014] FCAFC 38

Applicant: MZAKC

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: MLG 1750 of 2014

Judgment of: Judge Riley

Hearing date: 24 February 2016

Date of last submission: 24 February 2016

Delivered at: Melbourne

Delivered on: 14 April 2016

REPRESENTATION

Counsel for the applicant: Angel Aleksov

Solicitors for the applicant: Carina Ford Immigration Lawyers

Advocate for the first respondent: David Brown

Solicitors for the first respondent: Australian Government Solicitor

Counsel for the second respondent: No appearance

Solicitors for the second  respondent: Australian Government Solicitor

ORDERS

1. The decision of the Refugee Review Tribunal handed down on 29 November 2012 in matter number 1403721 be set aside.

2. The matter be remitted to the Administrative Appeals Tribunal for determination according to law.

3. The first respondent pay the applicant’s costs fixed in the sum of $6,825.

4. The title of the proceeding be amended so that the name of the second respondent is the Administrative Appeals Tribunal.

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1750 of 2014

MZAKC

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

REFUGEE REVIEW TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for review of a decision made by the Refugee Review Tribunal (“the Tribunal”). In that decision, the Tribunal affirmed a decision of the delegate not to grant the applicant a protection visa. 

2. A previous decision of the Tribunal in this matter was considered by this court and remitted for re-determination: MZZQH v Minister for Immigration [2014] FCCA 241.

The applicant’s claims

1. The applicant is a citizen of Pakistan.  He is a Sunni Muslim of Pashtun ethnicity from the Swat Valley.  The applicant claimed that:

   a)he was a member of a peace committee and identified Taliban operatives to the authorities;

   b)he carried out guard duties in his village at the army’s request;

   c)the Taliban sent him a threatening letter;

   d)his wife, who remained in the Swat Valley, said that the Taliban had told her that they would kill the applicant if he returned; and

   e)he would be exposed to a real risk of significant harm in the form of arbitrary deprivation of life if he were returned to Pakistan.

The Tribunal’s reasons

1. The Tribunal found the applicant to lack credibility.  The Tribunal considered that the applicant did not face a real chance of persecution because of an actual or imputed political opinion, namely, being anti-Taliban, or because of his membership of a particular social group, consisting of his family.  The Tribunal considered that the applicant was not owed protection under the complementary protection provisions on substantially the same bases.

Ground 1

1. The first ground of review in the application filed on 27 August 2014 is:

   The decision of the Tribunal in RRT Case Number 1403721 was affected by jurisdictional error, being that the Tribunal failed to perform the requirement under s 424(1) of the Migration Act 1958 (Cth) in that the Tribunal got information it considered relevant, but did not have regard to that information in making the decision.

   PARTICULARS

   a.There was a claim before the Tribunal that the Applicant feared that, as a necessary and foreseeable consequence of being returned to the Swat Valley in Pakistan, there was a real risk of him suffering significant harm within the meaning of s 36(2)(aa) of the Migration Act 1958 (Cth) as a result of the high levels of violence, and the inability of the Pakistani authorities to protect their citizens from this violence.

   b.The Tribunal got country information relevant to this claim.

   c.By reference to the this country information, the Tribunal made a finding that the Taliban are still active in Swat, and that there are still militant attacks and violence there.

   d.The Tribunal stated that these attacks need to be seen in the context that the population of Swat is about 1.8 million people. (Tribunal Reasons [58])

   e.This statistical observation was the only analysis conducted by the Tribunal in reaching its conclusion that as a necessary and foreseeable consequence of being returned to Swat, there was not a real risk of the Applicant suffering significant harm.

   f.In the premise, the Tribunal failed to have “regard” to the country information it had got, contrary to s 424(1) of the Migration Act 1958 (Cth): DZADQ v Minister for Immigration and Border Protection [2014] FCA 754; Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248.

2. The applicant did not explain to the court precisely what information the Tribunal had obtained that it did not have regard to.  Indeed, in oral submissions, the applicant moved away from that point and simply argued that the Tribunal in this case had made the same jurisdictional error as the Tribunal had made in DZADQ v Minister for Immigration and Border Protection [2014] FCA 754, however that error might be characterised.

3. The essence of the point relied upon by the applicant was set out in paragraph 65 of DZADQ, which is as follows:

   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.

4. The applicant argued that the Tribunal in the present case made a jurisdictional error by considering that the chance of the applicant suffering significant harm in the Swat Valley was remote because 1.8 million people live there.  The applicant noted that in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473, (2003) 78 ALD 8, (2003) 78 ALJR 180, (2003) 203 ALR 112, [2003] HCA 71, McHugh and Kirby JJ said at [58]:

   … 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”.

5. The applicant also noted that McHugh J said in Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1, (2004) 77 ALD 296, (2004) 78 ALJR 678, (2004) 205 ALR 487, [2004] HCA 18 at [80]:

   … 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.

6. The first respondent argued that the Tribunal in the present case considered the applicant’s particular circumstances very carefully and did not make the error identified in DZADQ.  The first respondent noted that the applicant acknowledged that a statistical analysis was not impermissible, provided that the applicant’s particular circumstances were also properly considered.

7. In the present case, the applicant clearly claimed to fear arbitrary deprivation of life.  Paragraph 85 of a written submission dated 19  June 2014 and lodged on behalf of the applicant by his solicitors said the following:

   We submit that there is a real risk that the applicant will be arbitrarily deprived of his life if he is returned to Pakistan. The applicant is from Kanju, in the Swat Valley in KP province.  This area is known to be one of the most dangerous areas in Pakistan, with both a TTP and Military presence in the region. As set out above, commentators have predicted a rise in terrorist attacks and ethnic tensions in the region.

8. The Tribunal dealt with this issue at paragraphs 58 to 60 of its reasons for decision under the heading “Pashtun Ethnicity/Violence in Swat” as follows:

   58. I accept that the applicant is a Pashtun and that in 2009 he and his family relocated to Charssada for two months during the army offensive in Swat returning to Kanju in July 2009.  I accept that the Taliban are still active in Swat and that there are still militant attacks and violence there as indicated by the above country information and in reports submitted by the applicant.  However, as put to the applicant at the hearing, these attacks need to be seen in the context that the population of Swat Valley is about 1.8m.[61] The Taliban are predominately Pashtun themselves.[62]  I have not come across any reports that persons are targeted or harmed or discriminated against in Swat because they are Pashtuns.  The Swat Valley is almost entirely populated by ethnic Pashtuns.[63]  When I put the substance of this to the applicant for comment at hearing, he stated that he was not targeted in Swat because he was a Pashtun but he was concerned that he would not get a house in the rest of Pakistan because he was a Pashtun.  He said that the government was not capable of protecting anyone from the militants and that from 2008 that continuously people were killed and that he feared he would be next.  I have considered his comments, but his home area is Swat and the applicant has not claimed that he has suffered any harm in this area because he was a Pashtun.  The applicant has never been involved with the Taliban and I find it remote that he will be perceived as being a supporter of them or involved with them and harmed simply because he is a Pashtun – I note that the anti-Taliban ANP is itself a Pashtun party.  I have taken into account that he speaks Pashto and does not speak Urdu well and that he does so with a Pashtun accent.  However, he has not claimed that he has ever been previously harmed or discriminated against in Swat and Pakistan on account of his Pashtun ethnicity and there is no country information before me that suggests that Pashtuns are harmed in Swat because of their Pashtun ethnicity.  I do not accept that he is of any adverse interest to the Taliban or anyone else and I find that the chance or risk that he will be significantly harmed or seriously harmed in his home area in the reasonably foreseeable future due the level of violence (and taking into account the large population of Swat) is remote.

   59.Based on the country information before me and his individual circumstances, I find that the applicant does not face a real chance of persecution, now or in reasonably foreseeable future from the Taliban or anyone else in the light of the violence for any reason (Convention related such as his Pashtun ethnicity or non-Convention related).

   60. Considering 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 applicant being removed from Australia to Pakistan that there is a real risk that he will suffer significant harm on this basis.

   [61] The International News, “KPK population increases by 51.6 pc in 13 years, data shows”, 3 April 2012, - accessed 24 July 2014.

   [62] Yale Global Online, “Pakistan’s Taliban Nightmare”, 23 August 2012, - accessed 24 March 2014.

   [63] The Khyber Pakhtunkhwa Tribune, - accessed 31 July 2014.

9. Both the heading and the content of that analysis show that the Tribunal concentrated on the applicant’s Pashtun ethnicity.  However, that was not relevant to the applicant’s claim in relation to arbitrary deprivation of life.  His claim about arbitrary deprivation of life was based on random violence. 

10. As is often the case, the Tribunal dealt with both the claims of serious harm (persecution) and the claims of significant harm (complementary protection) in the same paragraphs.  That is fine, as long as there is actually an intellectual engagement with both aspects of the matter.

11. In the present case, leaving aside the Tribunal’s comments about the applicant’s Pashtun ethnicity, the Tribunal’s only statement in paragraph 58 of its reasons for decision about random violence was at the end of that paragraph as follows:

    …  I find that the chance or risk that he will be significantly harmed … in his home area in the reasonably foreseeable future due to the level of violence (and taking into account the large population of Swat) is remote.

12. That contains no analysis at all of the applicant’s particular circumstances.

13. Paragraph 59 of the Tribunal’s reasons for decision is as follows:

    Based on the country information before me and his individual circumstances, I find that the applicant does not face a real chance of persecution, now or in reasonably foreseeable future from the Taliban or anyone else in the light of the violence for any reason (Convention related such as his Pashtun ethnicity or non-Convention related).

14. In that paragraph, the Tribunal referred to non-Convention related harm, which presumably means the complementary protection claim.  However, as the use of the word persecution in the third line shows, the Tribunal in paragraph 59 of its reasons for decision was actually dealing with Convention based persecution.  The reference to non-Convention harm in paragraph 59 must be the result of confusion, because there is no reference in that paragraph to significant harm, or anything else connected with complementary protection.

15. In any event, the Tribunal did attempt to deal squarely with the question of significant harm in paragraph 60 of its reasons for decision.  That paragraph is as follows:

    Considering 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 applicant being removed from Australia to Pakistan that there is a real risk that he will suffer significant harm on this basis.

16. In paragraph 60 of its reasons for decision, the Tribunal purported to the base its conclusion on a consideration of the country information and the applicant’s individual circumstances.  However the Tribunal did not say what the applicant’s individual circumstances were.  Paragraph 60 is no more than a conclusion or summary.  It is not the reasoning as such.

17. As discussed above, the reasoning in paragraph 58 of the Tribunal’s reasons for decision consists largely of a consideration of the applicant’s Pashtun ethnicity.  That is irrelevant to the question of complementary protection arising from random violence.

18. All in all, I am not persuaded that the Tribunal in this case did any more than determine that the applicant was not at risk of significant harm in the Swat Valley because he is just one person and the population of the Swat Valley is 1.8 million people.  For the reasons described in DZADQ, that is a jurisdictional error.

Ground 2

1. The second ground of review in the application filed on 27 August 2014 is:

   The decision of the Tribunal in RRT Case Number 1403721 was affected by jurisdictional error, being that the Tribunal failed to give proper, genuine and realistic consideration to the claimed fear of significant harm.

   PARTICULARS

   a.The Applicant refers to and repeats particulars (a)-(e) of Ground 1.

   b.In the premise, the Tribunal failed to give proper, genuine and realistic consideration to the claimed fear of significant harm: Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164; Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248; NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38, [26].

2. For the reasons given in relation to ground one, this ground must also succeed.

Conclusion

1. As the court has found jurisdictional error in this case, and as there was no suggestion that there are any discretionary reasons for not remitting the matter, the matter will again be remitted to the Tribunal for determination according to law. Costs will follow the event.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate: 

Date:  14 April 2016