MZAMU v Minister for Immigration

[2016] FCCA 216

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAMU v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 216

Catchwords:
MIGRATION – Judicial review – where Tribunal finds no reasonable fear of harm to applicant who is a Shia and a divorcee and whether the Tribunal is required to consider that an overlap or combination of these statuses elevates or exacerbates the risk of serious harm.

Legislation:

Migration Act 1958 (Cth)

Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263
NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695

Applicant: MZAMU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2161 of 2014

Judgment of: Judge McGuire

Hearing date: 26 October 2015

Date of Last Submission: 26 October 2015

Delivered at: Melbourne

Delivered on: 16 March 2016

REPRESENTATION

Counsel for the Applicant: Mr Aleksov

Solicitors for the Applicant: Victoria Legal Aid, Melbourne

Counsel for the Respondent: Mr Smyth

Solicitors for the Respondent: Australian Government Solicitors

ORDERS

1. The name of the second respondent be amended to read “Administrative Appeals Tribunal”.

2. The application for judicial review be dismissed.

3. The applicant pay the first respondent’s costs set in a quantum of $6825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2161 of 2014

MZAMU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Application

1. This is an application for a judicial review of a decision of the Refugee Review Tribunal (as it then was) (“the Tribunal”) made 30 September 2014 affirming a determination of the Minister’s delegate not to grant the applicant a protection (Class XA) visa.

2. The issue before me is a confined and discrete one, being that the Tribunal failed to deal with an issue raised by the applicant, or material or claim put before the Tribunal, being that the applicant is a Shia woman and a divorcee and that a combination of these two status elevates or exacerbates the risk of serious harm to her in Pakistan beyond the sum of each of the two component claims.

3. In a written statement dated 9 September 2014 her barrister/migration agent sets out the claim thus:

   (The applicant) feels at risk everywhere in Pakistan because she is a Shia woman who is divorced and has no male protector.  Divorce is still a source of shame in Pakistani culture and divorced women are viewed as “used goods”. (The applicant) also fears that her divorced status will exacerbate her vulnerability to serious or significant harm.  Pakistan is beset with extremist Islamic groups such as the Tehrik ae Taliban, the Laskhar e Jhangvi and Sipha e Sahabah, which regard Shias as heretics that need to be eliminated. Even less extremist conservative Sunni groups persecute Shias.

4. And in the same submission:

   …she fears that her status as a single and divorced woman will make her more vulnerable to serious or significant harm.

5. The applicant’s amended application formalises the grounds of the application as follows:

   (1)The Tribunal constructively failed to “review” the decision in that:

   (a)The applicant claimed to have an exacerbated vulnerability to serious or significant harm from religious groups because of her status as a divorced woman, which was expressly made, or at least, clearly arose from the materials before the Tribunal, being the submission at CB138.

   (b)The Tribunal did not expressly address whether her status as a divorced Shia woman would exacerbate her vulnerability to serious or significant harm from extremist Islamic groups.

   (c)It is to be inferred that the Tribunal ignored this submission, and thereby failed to exercise its jurisdiction.

6. The applicant is a Pakistan national.  She is of the Shia Muslim faith.  The applicant entered Australia pursuant to a student visa and during her stay in Australia she and her husband were divorced.

7. On 3 May 2013 the applicant applied for the protection visa.  That application was refused by the Minister’s delegate on 30 May 2014.

8. On 19 June 2014 the applicant applied to the Tribunal for a merits review.  She attended at the hearing on 10 September 2014 and gave and adduced evidence. Her application was supported by written submissions from her representative, including country information.  The Tribunal affirmed the delegate’s decision on 30 September 2014.

The Tribunal’s Decision

1. The applicant before me accepts that the Tribunal dealt with the applicant’s claims by the integers of, firstly, she being a Shia and, secondly, she being a divorced woman. No quarrel is taken with the Tribunal’s separate findings that the applicant’s risks of harm were remote in respect of each particular and hence does not face a real chance of persecution in the reasonably foreseeable future in Pakistan, pursuant to the Convention and the statutory guidelines.

The Applications of this Court

1. The applicant argues succinctly that the Tribunal neglected to consider the applicant’s articulated claims that she being both a Shia and a divorcee together elevate or exacerbate the risk of harm above the findings in respect of the separate integers of being remote.

Consideration

1. At [26] of its reasons, the Tribunal found the applicant to be a credible witness and generally accepted the applicant’s evidence [27] and country information [28]-[30] and [39], together with country information submitted by the applicant.  At [41] the Tribunal finds specifically:

   Based on the independent country information and her specific individual circumstances, I find that the applicant does not face a real chance of persecution in the reasonably foreseeable future from Sunni extremist groups, the State or anyone else because of her Shia religion or actual or imputed political opinions.

2. At [43] and following the Tribunal moves to consider the applicant’s claim under the heading “Divorced Woman claims”. Again, the Tribunal considered the country information [44] and continues:

   I accept that divorced woman face stigma and even some level of ostracism as set out in the country information, but it does not indicate that the chance or risk that a divorced woman will be sexually assaulted or otherwise seriously harmed or significantly harmed is anything more than remote.  Whilst I accept that the applicant was interviewed twice on TV, this was a significant period of time ago and I do not accept that this increases the chance or risk that she will be seriously harmed or significantly harmed to be one that is more than remote.

3. At [47] the Tribunal finds:

   Based on the independent country information and her specific individual circumstances, I find that the applicant does not face a real chance of persecution in the reasonably foreseeable future on account of her membership of particular social groups consisting of women in Pakistan or divorced women in Pakistan.

4. Under the heading “Cumulative Assessment” the Tribunal, at [49]-[50] states:

   49.  Considering all the applicant’s claims cumulatively, I find that she does not face a real chance of persecution for any reason (Convention or non-Convention related) in the reasonably foreseeable future in Pakistan.  Her fear of prosecution is not well-founded.

   50.  Considering all of the applicant’s claims cumulatively, 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 she will suffer significant harm.

5. Put simply, and accepting the findings of the Tribunal as to the separate claims, the applicant says that the Tribunal did not consider the claim of exacerbated harm because of the overlap of Shia and divorced woman particulars for this applicant.  The applicant says that the failure of the Tribunal to deal with an express or apparent claim infects the Tribunal’s decision with jurisdictional error.[1]

   [1] Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389

6. The applicant referred the court to the authority of the Full Court in NABE v Minister for Immigration (No 2)[2]  and the comment of Allsop J in NAVK v Minister for Immigration[3] where his Honour said:

   The Full Court in NABE v Minister for Immigration [2004] FCAFC 263 at [55]-[63] dealt with the question of what claims must be dealt with by the Tribunal to complete its statutorily required task (its jurisdiction) even though they may not be expressly articulated.  See also Dranichnikov v Minister for Immigration (2003) 197 ALR 389, 394 [24], 408 [95] and Applicant S 395/2002 v Minister for Immigration (2003) 203 ALR 112.  From NABE I take it that the Tribunal is not required to consider a claim that is not expressly made or does not arise clearly on the materials before it:

   NABE at [61].  As the Full Court said at [63] much depends on the circumstances.  Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal, in the circumstances, to appreciate its existence.  A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.

   [2] NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263

   [3] NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15]

7. It is easily apparent from the Tribunal’s reasons that the two distinct integers of the applicant’s claim being, firstly, that she is a Shia and, secondly, that she is a divorcee were considered and rejected by the Tribunal as not passing the threshold test.  These were findings open to the Tribunal that the applicant did not face a well-founded fear of persecution on account of either.

8. Counsel for the first respondent also refers me to the decision of the Full Court in NABE (supra) as to the functions of the Tribunal to determine whether there is a well-founded fear of persecution on the basis of the facts asserted and informed by the statutory criteria. The argument before me, as mounted by the applicant’s Counsel is one based on logical deductions.  He says that the Tribunal failed to consider an “overlap” of the particulars of “Shia” and “divorcee”.  In his oral submissions counsellor asked the court to consider his argument in the sense of an overlapping Venn diagram.

9. Counsel for the first respondent counters, similarly, with an argument based on logic, being that any argument as to exacerbation of harm first requires a finding that either or both of the premises of the applicant’s claim must accomplish a finding of reasonable fear of harm pursuant to the statutory requirements.

10. I am not persuaded by the applicant’s arguments.  On consideration, I am of the view that there must first be a positive finding of well-founded fear of or risk of harm in respect of one of the particulars of the applicant’s claim in that failing any such finding there is “nothing to exacerbate”. Put simply, the Tribunal was required to pass the threshold in respect of one or both of the premises before an “exacerbation” need be considered.  In this sense, the decision of the Full Court in WAEE v Minister for Immigration and Multicultural and Indigenous Affairs[4] is relevant where their Honours say:

    The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons.  But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point.  It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected (my emphasis).  Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dipositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

    [4] Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 at [47]

11. Within this context I am satisfied that the Tribunal was appropriately appraised of the applicant’s claims and, in particular, at [21]-[24] the reasons state:

    21.  The applicant’s claims can be summarised as follows. She was born in Bhimber, Azad Kashmir, Pakistan in 1983. She lived there until 2005, when she moved to Rawalpindi where she worked as a customer service representative and a security receptionist. She is a Shia and a divorcee (my emphasis).  She can speak, read and write Urdu and English. She arrived in Australia on a student visa in August 2011.

    22. The applicant returned to Pakistan in February 2013, but came back after three weeks because of the security conditions there. There was a blast in Quetta on 16 February 2013 and hundreds of innocent people were killed. With her cousin, she went to a protest and sit-in in Islamabad and had interviews with two different TV channels and was a very active protester. After 2-3 days when she was nearing a shopping centre with her mother she was attacked by four unknown men on motorcycles who shot at her and tried to kill her. She escaped uninjured and reported the incident to the nearest police station. After this incident, they threw letters at Shia houses to leave the area.

    23.  As a Shia there is no safe place in Pakistan and people die in targeted killings and bombings. Anti-Shia groups are strong all over the country. The applicant is a single woman and in her culture, single women are not encouraged to live by themselves so it will be hard to live by herself. She separated from her husband on 1 March 2012 and divorced in 2013. She fears harm because she is a Shia woman who is divorced, which is a source of shame in Pakistan.  She cannot discount that a material of her ex-husband’s family may seek to punish her.

    24. The applicant’s brother attended a procession on 15 November 2013 and was injured by people throwing stones. A week and a half later he and his friends were arrested by the police using CCTV and media footage.  They were detained for 12 hours but not physically mistreated.

12. The Tribunal’s reasons are uncontroversial as it informed its decision in respect of the applicant’s claims as to the premises of her being a Shia and of her being a divorcee. I am satisfied that these separate findings then negate the requirement to enter into any claim as to “exacerbation” in that logically there must first be a positive finding in respect of either or both premises. It follows that the Tribunal’s cumulative assessment should likewise be read within the context of its uncontroversial findings as to the particulars of the applicant being a Shia and being a divorcee. I am therefore satisfied that any required analysis of the “exacerbation argument” is subsumed in the findings as to the particulars. The Tribunal correctly understood those particulars as relating to the applicant’s religion and her divorcee status. Once the findings of the particulars were made (which are not subject to challenge) then the Tribunal’s reasons do not need to proceed to a consideration of any “exacerbation”. Such logic sits easily with the observations of the Full Court in WAEE (supra) that any inference that the Tribunal has failed to consider an issue should not too readily be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point and also with the observations of the High Court (Brennan CJ, Toohey, McHugh and Gummow JJ) in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259:

    These propositions are well-settled.  They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.

13. Finally, insofar as the grounds of complaint can be seen as challenging the cumulative consideration of the Tribunal, I accept the submission of counsel for the applicant that the reasoning of the Tribunal should be accepted in its statement that it has considered the cumulative assessment of the particulars of the claim although, also accepting the submissions of both Counsel, the reasons appear to be put in a “formulaic” sense.

Conclusion

1. Consequently, in not accepting the argument of the applicant, I do not find the grounds of complaint made out and the application will be dismissed with an order for costs.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date: 16 March 2016