Mzamu v Minister for Immigration and Border Protection

[2016] FCA 1046

FEDERAL COURT OF AUSTRALIA

MZAMU v Minister for Immigration and Border Protection [2016] FCA 1046

Appeal from:	MZAMU v Minster for Immigration and Anor [2016] FCCA 216
File number:	VID 275 of 2016
Judge:	JESSUP J
Date of judgment:	30 August 2016
Catchwords:	MIGRATION – Where appellant divorced Shia woman – Consideration by Tribunal of Shia and divorced woman claims – whether Tribunal erred in consideration of ‘exacerbated vulnerability’ in relation to combined protection claims – Whether Tribunal ignored submission regarding combined protection claim – appeal dismissed.
Legislation:	Migration Act 1958 (Cth)
Date of hearing:	9 August 2016
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	23
Counsel for the Appellant:	Mr A Aleksov
Solicitor for the Appellant:	Victoria Legal Aid
Counsel for the First Respondent:	Mr T Smyth
Solicitor for the First Respondent:	Australian Government Solicitor
Counsel for the Second Respondent:	The second respondent filed a submitting notice

ORDERS

VID 275 of 2016

BETWEEN:

MZAMU

Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	JESSUP J
DATE OF ORDER:	30 AUGUST 2016

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the costs of the respondent Minister.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

JESSUP J:

1. This is an appeal from a judgment of the Federal Circuit Court of Australia, given on 16 March 2016, dismissing an application for judicial review of a decision of the Refugee Review Tribunal, published on 30 September 2014, affirming an earlier decision of the delegate of the respondent Minister to refuse the appellant’s application for a Protection (Class XA) visa under the Migration Act 1958 (Cth) (“the Act”).

2. The appellant is a Pakistani national of the Shia faith from Rawalpindi.  She originally came to Australia, with her then husband, in August 2011 on a student visa.  She claimed to have separated from her husband (according the reasons of the delegate, on 1 March 2012) and this claim was accepted by the Tribunal.  It also accepted that she and her husband divorced in 2013.  The appellant was absent from Australia for about a fortnight in July 2012, and in February 2013 she returned to Pakistan to visit her family, an intended sojourn of a month, but which she cut short to three weeks only on account, she claimed, of having been attacked by “some unknowns”.

3. In her visa application, the appellant answered the question “What do you fear may happen to you if you go back to that country?” as follows:

   As I explained above I was attacked and tried to be killed. If I go back this could happen with me again.  I want to save my life and do not want to go back.  I am very scared and feared.  As I belong to community which is under threat all over the Pakistan [whether] [it’s] Balochistan, Karachi, Lahore or Rawalpindi.  For your more information a blast has occurred in Rawalpindi last year in Moharran (which is month of sorrow).  No place is safe there.  Innocent people are killed there by target killing, bomb attacks and even people going to their home towns in buses and vans.  Terrorists attack Shia people where ever they find a chance. 

   Secondly I want to mentioned I am a single women and in our (culture) society does not encourage single women to live by herself.  Specially I am separated and men in our country always wish to marry with women who never get married before.  For me its hard to live by myself there or move to another place.

   [errors in original]

4. To the question, “Why do you think this will happen to you if you go back?”, the appellant answered:

   Anti Shia groups Laskhar-e-Jhangvi, Sipha-e-Sahabah and many others are strong and have roots all over the country.  This could happen with anyone who is Shia-Muslim no matter he live in Quetta, Karachi, Lahore or Rawalpindi.  As I was attacked once and I do not want to put my life in danger again.  Security conditions in Pakistan are not under control.  Even [Government] of Pakistan and security forces failed to provide security to the country’s Shia Muslims.  Shia Muslims demanded many times to take immediate action against groups involved in the sectarian killing, but they failed.  I do not feel safe to go back and take a risk.  It is heart breaking for me to see Shia genocide of Shia Muslims as I am part of them.  But this is a [humanitarian] issue I am against all the incident and killing of human.  As we have experienced so many times that this will not happen again but it keeps on going.  Now the terrorist group have warned they will keep on doing this and will never stop.  In some cities these terrorist group sent letter to Shia families to leave the area otherwise they will be killed.  So, if I go back and being attacked again I do not think so I would be lucky enough to manage to escape again.  I am worried about my family there who are facing threat but they are satisfied at least I live at safe place. 

   And I will recognised because everyone saw me on the T-V.

   [errors in original]

5. The delegate identified the appellant’s claims as a fear of harm by reason of her religion (Shia Islam), her imputed political opinion (on account of her having attended political protests during her three-week stay in Pakistan in February 2013), and her membership of a particular social group (divorced women).  Those claims were rejected.

6. The appellant sought a merits review before the Tribunal and, by letter to the Tribunal dated 9 September 2014, her counsel said that she had been instructed to draw certain matters to the Tribunal’s attention before the hearing scheduled for the following day.  Describing the history of the matter, counsel said that her client “applied for protection on the basis of her Shia faith and the attacks on Shias in Pakistan”.  After referring to various incidents in Pakistan, and commenting (critically) on the conduct of the hearing before the delegate, counsel continued:

   [The appellant] 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 appellant] 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 e 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.

   This passage in counsel’s letter of 9 September 2014 was central to the appellant’s case in the present appeal, for reasons to which I shall come shortly.

7. In its recitation of the appellant’s claims in its decision of 30 September 2014, the Tribunal said:

   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 member of her ex-husband’s family may seek to punish her. 

8. The Tribunal analysed the appellant’s claims under three categories:  first, her membership of a social group consisting of her family;  secondly, her religion, the Shia Muslim faith and, integrally with that, her imputed political opinion;  and thirdly, her membership of a social group consisting of women, or divorced women, in Pakistan.  Each claim was rejected.  Relevantly for present purposes, it may be said that, in that part of its reasons which dealt with the religion claim, the Tribunal made no explicit mention of the circumstance that the appellant was a divorced woman, and, in that part of its reasons which dealt with the divorcee claim, the Tribunal made no explicit mention of the circumstance that the appellant was of the Shia faith.

9. In concluding the section of its reasons dealing with the appellant’s religion and political opinion, the Tribunal said:

   Based on the independent country information and her specific 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, the state or anyone else because of her Shia religion or actual or imputed political opinion. 

   Based on the independent country information and her specific 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 she will suffer significant harm at the hands of Sunni extremist groups, the s­­tate or anyone else on account of her religion or actual or imputed political opinion. 

10. In the section of its reasons dealing with the appellant’s status as a divorcee, the Tribunal said that it had considered carefully the country information supplied by the appellant’s agent (ie the counsel to whom I have referred) and the other information which it proceeded to set out.  It accepted that divorced women “face stigma and even some level of ostracism”, but added that that did not indicate “that the chance or risk that a divorced woman [would] be sexually assaulted or otherwise seriously harmed or significantly harmed [was] anything more than remote.”  It referred to country information with respect to the treatment of divorced women in Pakistan.

11. The Tribunal went on:

    The applicant returned to stay at her family’s home and went out shopping with her mother in February 2013 which was well after she separated from her husband.  She has not indicated that her own family would wish to harm her because of her divorce.  I find her concerns about fearing harm from her husband’s family to be completely speculative.  She has not claimed that she has been the subject of any specific threats from them.  Further, that she was willing to travel back to her home in Pakistan in February 2013 further detracts from her claimed fear as there was some possibility that her husband’s family could have become aware of this.  The applicant has not claimed that she was harmed or targeted by anyone during her time in Pakistan in February 2013 even though she was separated from her husband.  I acknowledge that single and divorced women in Pakistan can face difficulties getting their own place to live.  However, the applicant lived at her family home when she returned to Pakistan and she indicated that she had three adult sisters who did this.  I do not accept that in these circumstances the applicant would wish to live on her own.  Even if she did, I find that the difficulties of being able to rent her own place would not constitute either serious harm or significant harm as she would be able to reside with her family.  Whilst I accept that she would suffer a level of stigma and ostracism from the community because of her divorced status, in her particular circumstances where she would have the support of her family, I do not find that this would amount to either serious harm or significant harm. 

    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.

    Based on the country information and her specific 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 she will suffer significant harm on these bases. 

12. Finally, under the heading in its reasons, “Cumulative assessment”, the Tribunal said:

    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 persecution is not well founded.

    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.

13. The single ground of judicial review upon which the appellant relied in the Federal Circuit Court was 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 CB 138.

    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.

14. In the disposition of the appellant’s case, the primary Judge said:

    17.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.

    The appellant’s argument on appeal does not involve any challenge to this passage.

15. However, the primary Judge continued as follows:

    19.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. 

    20.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 ([2003] FCAFC 184 at [47]) 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. 

16. His Honour said that he was satisfied that the Tribunal was “appropriately appraised” of the appellant’s claims.  Having extracted some passages from the Tribunal’s decision, his Honour continued as follows:

    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. 

17. Finally, while accepting that the articulation of the result of the Tribunal’s “Cumulative assessment” was “formulaic”, his Honour held that the Tribunal had in fact made a cumulative assessment of all of the particulars of the appellant’s claims.

18. I have reached the view, with respect, that the primary Judge’s disposition of the appellant’s “exacerbation” point cannot be upheld.  In her counsel’s letter of 9 September 2014, the appellant was not using the concept of “exacerbation” analogously, for example, with that of the aggravation of an existing injury.  Rather, it was her vulnerability, in the sense of risk, which was increased because she was both a Shia and a female divorcee.  His Honour’s opinion that there could be no exacerbated vulnerability unless there was first a conclusion that there was a well-founded fear of harm on account of the appellant’s religion as such cannot, with respect, be supported.  At this level of analysis, counsel for the Minister did not seek to do so.

19. But the question remains whether the inference referred to in para (c) of the appellant’s single ground in the Federal Circuit Court – that it should be inferred that the Tribunal ignored the submission made by counsel in her letter of 9 September 2014 – should be drawn.  If it should, the question will then arise as to the legal consequences of such a situation.  But, for reasons which follow, I am not persuaded that, in point of fact, the Tribunal did ignore the submission.

20. It is apparent from the passage which I have set out in para 6 above that the Tribunal was aware of the submission.  It is not as though, therefore, the submission never came to the Tribunal’s attention, or the Tribunal simply forgot about the submission in preparing its reasons.  It is true that the Tribunal did not devote a discrete, labelled, compartment of its reasons to the submission, but it should be remembered, in this regard, that counsel was not proposing a new Convention-related source of fear of harm:  she was, as she said in the second paragraph of her letter, drawing a number of matters to the Tribunal’s attention before the hearing scheduled for the following day.

1. Had the Tribunal dealt with the exacerbation claim in its strictly logical place, it would have included it as a kind of sub-issue under the heading “Shia claims”.  At that point, however, the Tribunal had not considered the “Divorced Woman claims” in their own right.  One can understand, therefore, why the former compartment of the reasons was not overlaid with issues that depended on the view which the Tribunal would subsequently express in the latter.  When the Tribunal did come to consider the divorced woman claims, it was the alleged fears of the appellant specifically, known to be a woman of the Shia faith with the issues which attended that circumstance, with which it dealt.  The Tribunal there referred to the stigma and ostracism from the community which the appellant would suffer, to the support which the appellant would have from her family and to the appellant’s “specific individual circumstances”.  The setting for all of this was that the appellant was a Shia woman.

2. It is in this context that one comes to the Tribunal’s “cumulative assessment”, which I have set out at para 12 above.  In terms, this section of the Tribunal’s reasons encapsulated the exacerbation submission which had been made on the appellant’s behalf.  There is a sense in which these words might be described as formulaic, but the formula, deriving from the Convention as it did, was an important one which the Tribunal did well to keep in the forefront of its mind.   The Federal Circuit Court was not persuaded that the words should not be taken at face value, and neither am I.  They stand as an indication that the Tribunal had turned its mind to the strength of the appellant’s claims when considered jointly, as well as separately.  In the circumstances, I would not draw the inference that the appellant’s exacerbation submission was ignored.

3. Because the factual allegation upon which the appellant’s ground of challenge to the Tribunal’s decision was based has not been made good, her appeal from the judgment of the Federal Circuit Court must be dismissed. 

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.

Associate: 

Dated:        30 August 2016