MZZIH v Minister for Immigration and Border Protection
[2014] FCA 510
•20 May 2014
FEDERAL COURT OF AUSTRALIA
MZZIH v Minister for Immigration and Border Protection [2014] FCA 510
Citation: MZZIH v Minister for Immigration and Border Protection [2014] FCA 510 Appeal from: MZZIH v Minister for Immigration and Border Protection [2013] FCCA 1410 Parties: MZZIH v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number(s): VID 1078 of 2013 Judge(s): DAVIES J Date of judgment: 20 May 2014 Catchwords: MIGRATION – appellant claimed to fear harm as a Shia Muslim of Hazara ethnicity – Refugee Review Tribunal failed to consider the component integers of the appellant’s claim – Refugee Review Tribunal failed to consider appellant’s particular circumstances in determining appellant could relocate to Peshawar – appeal allowed Legislation: Migration Act 1958 (Cth) s 65 Cases cited: Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802
Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18Date of hearing: 20 May 2014 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 13 Counsel for the Appellant: Ms A Burt Solicitor for the Appellant: Victoria Legal Aid Counsel for the First Respondent: Mr M. J Smith Solicitor for the Respondents: Sparke Helmore Lawyers
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 1078 of 2013
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: MZZIH
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
DAVIES J
DATE OF ORDER:
20 MAY 2014
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The appeal be allowed.
2.The orders of the Federal Circuit Court made on 20 September 2013 be set aside.
3.The proceeding be remitted to the Refugee Review Tribunal for determination in accordance with the law.
4.The first respondent pay the appellant’s costs of the appeal and the proceeding below.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 1078 of 2013
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: MZZIH
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
DAVIES J
DATE:
20 MAY 2014
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
INTRODUCTION
The appellant has appealed the decision of the Federal Circuit Court of Australia (“the FCC”) dismissing the appellant’s application for review of the decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal affirmed the decision of a delegate of the first respondent (“the Minister”) to refuse the appellant a Protection (Class XA) Visa pursuant to s 65 of the Migration Act 1958 (Cth) (“the Act”).
THE APPLICATION FOR A PROTECTION (CLASS XA) VISA
The appellant, who is a citizen of Pakistan born and raised in Quetta, applied for a Protection (Class XA), claiming to fear persecution in Pakistan by reason of his Hazara ethnicity and Shia Muslim faith. The delegate accepted that the Hazara Shia group is being targeted by anti-Shiite militant groups but found that the likelihood of him facing serious harm for reasons of race and religion was remote and therefore refused the visa.
THE TRIBUNAL’S DECISION
The Tribunal accepted that Hazaras in Quetta have been the subject of numerous sectarian attacks in recent times, but found that it is reasonable to expect the appellant to relocate to Peshawar. First, the Tribunal considered that the evidence did not suggest that the Hazaras in Peshawar are being targeted or persecuted by extremist or insurgent groups for reasons of their race and therefore did not accept that there is a real chance that the appellant will be killed or injured for reasons of his race as a Hazara, if he returns to Pakistan and settles in Peshawar. Secondly, whilst the Tribunal accepted that sectarian violence continues to be a problem in Pakistan, including in Peshawar, the Tribunal considered that the chance of any individual Shia Muslim being killed or injured in sectarian violence was “very remote”, having regard to the number of incidents compared with the number of Shia Muslims in Pakistan (around 40 million or approximately 23% of the population of 174 million). The Tribunal therefore did not accept that there is a real chance that the appellant will be killed or injured or otherwise persecuted in the context of sectarian attacks on Shia Muslims or that he will be prevented from practising his religion, if he returns to Pakistan and settles in Peshawar.
The Tribunal member concluded at [93]:
I have considered the totality of the [appellant’s] circumstances as a Hazara and a Shia Muslim. However, even taking into account the cumulative effect of these circumstances, for the reasons given above, I do not accept that there is a real chance that the [appellant] will be seriously physically abused, killed, subjected to a level of discrimination which will threaten his capacity to subsist or otherwise persecuted for reasons of his race (Hazara) [or] his religion (Shia) … if he returns to Pakistan and settles in Peshawar …
THE FEDERAL CIRCUIT COURT’S DECISION
The appellant sought judicial review in the FCC of the Tribunal’s decision. The grounds of the amended application included that:
(a)the Tribunal failed to consider the component integers of the appellant’s claim to fear harm as a Shia Muslim of Hazara ethnicity (“Ground 1”); and
(b)in considering whether the appellant faced a “real chance” of persecution (s 32(2)(a) of the Act) or significant harm (s 32(2)(aa) of the Act), the Tribunal applied the wrong test (“Ground 2”).
On Ground 1, the FCC found that on a fair reading of the Tribunal’s reasoning, it was clear that the Tribunal was aware that the appellant was a Shia Muslim of Hazara ethnicity and considered his claims as such and their component integers.
On Ground 2, the FCC found that the Tribunal’s application of the “real chance” of persecution test revealed no error.
The FCC concluded that as there was no jurisdictional error in the Tribunal’s decision, the application for judicial review must be dismissed.
APPEAL TO THIS COURT
On appeal, the appellant again advanced grounds 1 and 2 but this time as his sole grounds of appeal.
On Ground 1, the appellant contends that the Tribunal fell into jurisdictional error because it considered the appellant’s claim based on his ethnicity and religion “separately, but not together” and failed to consider the appellant’s claims “cumulatively”. It was argued that it was not sufficient for the Tribunal to examine the appellant’s Shia religion and Hazara ethnicity separately because the claim as advanced was that his ethnicity as a Hazara made it more likely that he will be targeted as a Shia. It was submitted that by failing to consider the claim that he is a Shia who is more prominent because of his Hazara ethnicity, the Tribunal made a jurisdictional error in that it failed to consider an integer of the claim. I agree.
It is clear from a fair reading of the Tribunal’s decision as a whole that the Tribunal appreciated that that an integer of the appellant’s claim was that his ethnicity as a Hazara made it more likely that he will be targeted not only for reasons of his ethnicity but also for reasons of his religion as a Shia. The Tribunal considered whether, and accepted that, Hazaras in Quetta have been the subject of numerous sectarian attacks. Having so found, the Tribunal then went on to consider whether it was reasonable to expect the appellant to relocate to some other part of Pakistan. The Tribunal correctly considered whether the evidence suggested that the Hazaras in Peshawar were being targeted for reasons of their race. However, the Tribunal failed to go on to consider whether the Hazaras as a group were being targeted in Peshawar for reasons of their religion as Shias. The Tribunal only considered whether there is a real chance that the appellant will be persecuted “in the context of sectarian attacks on Shia Muslims”. Given the evidence before the Tribunal that almost all Hazaras are Shia Muslims and the finding of the Tribunal that Hazaras in Quetta have been targeted for sectarian attacks, it was necessary for the Tribunal also to deal with the question of whether the appellant’s ethnicity as a Hazara made it more likely that he will be targeted in Peshawar for religious reasons. Although the Tribunal claimed to have taken into account the cumulative effect of the appellant’s ethnicity as a Hazara, it in fact failed to do so in considering whether the appellant had a well-founded fear of persecution for religious reasons as a Hazara Shia and thereby fell into legal error: Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802 at [42] per Allsop J (with whom Spender J agreed).
This conclusion means that the appellant must succeed on both grounds. Having earlier identified that Hazaras in Quetta have been targeted for sectarian attacks, the appellant’s ethnicity as a Hazara was therefore relevant to determining whether his fear of persecution for reasons of religion was well-founded. The Tribunal fell into legal error by excluding that matter from its consideration when determining the question as to whether the appellant’s fear of persecution for reasons of religion was well-founded. The reasoning of the Tribunal focused only on the remoteness of an individual Shia Muslim being targeted and in so doing, failed to consider the particular circumstances of the appellate in forming the opinion that he could relocate to Peshawar to avoid the risk of persecution for reasons of religion: Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18 at [80]-[82] per McHugh J).
CONCLUSION
The appeal should be allowed and the following orders made:
1.The appeal be allowed.
2.The orders of the Federal Circuit Court made on 20 September 2013 be set aside.
3.The proceeding be remitted to the Refugee Review Tribunal for determination in accordance with the law.
4.The first respondent pay the appellant’s costs of the appeal and the proceeding below.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies.
Associate:
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