MZZXN v Minister for Immigration

[2015] FCCA 73

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZXN v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 73

Catchwords:
MIGRATION – Alleged jurisdictional error by Refugee Review Tribunal – whether the Tribunal misapplied the “well-founded fear” test – whether Tribunal properly engaged with and considered country information put before it – whether Tribunal failed to properly apply approach of the High Court in SZSCA v Minister – whether Tribunal erred within jurisdiction – jurisdictional error not shown. 

Legislation:  
Migration Act 1958, s.91R

Minister for Immigration and Border Protection v SZSCA [2014] HCA 45
Craig v South Australia (1995) 184 CLR 163
DZADQ v Minister for Immigration and Border Protection [2014] FCA 754

Applicant: MZZXN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 2240 of 2013

Judgment of: Judge Burchardt

Hearing date: 20 November 2014

Date of Last Submission: 20 November 2014

Delivered at: Melbourne

Delivered on: 29 January 2015

REPRESENTATION

Counsel for the Applicant: Mr Robertson

Solicitors for the Applicant: Fragomen

Counsel for the First Respondent: Mr Goodwin

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed. 

2. The applicant pay the first respondent’s costs. 

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 2240 of 2013

MZZXN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introductory

1. By a further amended application filed on 19 November 2014, the applicant seeks judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”), dated 3 December 2013.  The application asserts three grounds of review.  The first two grounds assert jurisdictional error on the Tribunal’s part in the manner it addressed the issue of whether the applicant had a well-founded fear of being persecuted for a Convention reason.  The third ground asserts that the Tribunal failed to ask itself the correct question and did so because it failed to apply the approach taken by the High Court in Minister for Immigration and Border Protection v SZSCA [2014] HCA 45 (“SZSCA”). 

2. For the reasons that follow, I do not think that the criticisms of the Tribunal’s decision are made out and it follows that the application will be dismissed with costs. 

Some uncontroversial facts

1. The applicant is a Pakistani national, born on 24 February 1993 in Parachinar in Kurram Agency, Pakistan.  He is a Bangash Shia who is able to speak, read and write Urdu and English, and can speak and read Pashto.  He relocated with his family from Parachinar to Islamabad in 2008 due to violence in Parachinar which made it unsafe to live there.

2. Between 2008 and 2012, while he was living in Islamabad, the applicant had a measure of involvement in Shia activities and causes, including participating in a Shia humanitarian association called the Pak Haidery Scouts (spelt in various ways in the materials).  The extent of this involvement was, however, in issue before the Tribunal. 

3. The applicant travelled to Australia on 20 November 2012 on a student visa and applied, with the assistance of a migration agent, for a protection visa on 5 March 2013.  

4. In circumstances where, as here, the criticisms advanced of the Tribunal’s decision involve detailed examination of what the Tribunal found on the evidence, it is necessary to look at what materials were before the Tribunal as disclosed by the Court Book (“CB”). 

The materials in the Court Book

1. At CB31 (repeated at CB54), the applicant gave details of his employment.  He also asserted that:

   “I did some volunteer work after college for Pak Haidery Scouts Islamabad which is a humanitarian association.  I was working as a volunteer security group leader during religious processions.  I was being called to help on an irregular basis.  This was between end of 2010 until my departure from Pakistan.  This was not paid.”

2. At CB68-72, the applicant’s statutory declaration is set out.  At CB68, he confirmed that his father was living with his brother in Islamabad and his older sister was married and lived in Islamabad.  He deposed that his mother and the rest of his younger siblings had recently moved back to Parachinar after he had left Pakistan. 

3. The applicant deposed (CB68-69) that:

   “I left Pakistan as a student and came to Australia as I believed that this was the easiest way for me to flee the country.  I am educated and taking a boat to come to Australia illegally was the option for undedicated [sic] people.  Getting a student visa is also safer for me.  I had made arrangements through an agent who I paid money to for them to organise my papers. 

   I have lived in Pakistan up until the time I fled due to the persecution I was facing as a Shia Muslim and as a person who was heavily involved in the Shia community in Islamabad.  I have not returned to the country since I fled.”

4. Having referred to the problems his family had faced in Parachinar from 2007 on, and the fact that he and his family had fled to Islamabad in 2008 (his father was working in Dubai at the time), he deposed that in Islamabad he became a very active member of the Shia community and used to assist many people who were coming to Parachinar to get settled in Islamabad.  He deposed (CB69):

   “I used to help people settle by finding them jobs, finding them a position in a school or college and to get them passports.  Many people in the community knew who I was and my father’s business in Dubai at the time was going very well.  I had free time on my hands, passion to help others who had gone through the same problems as my family, and spare finances to assist.”

5. The applicant went on to depose that he had taken part in a large protest in 2012 for Shia people and had camped outside the press club in Islamabad for many days.  He deposed to receiving phone calls from an unknown phone number on his mobile phone after the end of the protest in August 2012, which he never answered as he knew they were from various groups who were targeting Shias in Islamabad. 

6. He went on to depose at CB70 that he was also involved in the Pak Haidery Scouts whose main aim was to assist those that needed humanitarian relief.  Because it was a Shia organisation, it had heavy involvement in Shia religious festivals.  The applicant deposed that he was a group leader and used to assist with security during these religious festivities. 

7. After being involved as a security team leader during Moharam processions in 2012, the applicant deposed that he noticed that there were a few unusual looking people around whom he assumed were Sunni people spying most likely for the Lashk-e-Jangvi.  He deposed that he was followed on two occasions by two men on motorbikes and was followed home by someone who looked like the people who looked and dressed like Sunnis.  He deposed (CB70-71):

   “I became very afraid that these people were planning some attack against me.  Most likely they were from Lashk-e-Jangvi or Sepah-e-Sahaba as these groups often plan bomb attacks on Shia places of worship or gatherings, and I believe they were after me because of my profile in Islamabad an [sic] my work as a security coordinator during Shia celebrations. 

   My student visa was approved during Moharam so as soon as this happened, I organised my tickets to leave and departed one week later.”

8. The applicant went on to assert that extremist groups, including Lashk-e-Jangvi, Sepah-e-Sahaba and the Taliban would submit him to severe harm, imprisonment or death if he returned to Pakistan.  This was because of his Shia religion which those groups regard as false Islam.  He deposed that the government would not provide protection for him and that he could not relocate within Pakistan.  He further deposed that he could not return to Parachinar because of subsisting unrest there. 

9. I note that at CB152 there is a document supplied by the applicant about the Pak Haidery Scouts which shows that it is affiliated with the Pakistan Boy Scouts Association and is one of the biggest Scout groups in Pakistan.  The headquarters of the organisation is in Karachi but there are subgroups in a number of places including Islamabad.  I note that the Pak Haidery Scouts have the honour of leading the main processions in a number of places including Islamabad, and the organisation is ready to help the nation in any natural disaster. 

The decision of the delegate

1. The decision record of the delegate is at CB167-189.  The delegate noted the applicant’s arrival in Australia on 20 November 2012 and the filing of the protection visa application on 5 March 2013 (CB168). 

2. The delegate relevantly referred to country information at CB175-181, including country information showing four terrorist attacks in 2011 in Islamabad (CB177).  The decision also noted a report from the Department of Foreign Affairs and Trade (“DFAT”) dated 31 May 2013 (CB177) which asserted that:

   “Many Shias (Pashtuns and Hazaras) have migrated and settled in Islamabad and are comparatively safe (although the comparatively higher cost of housing is an economic barrier to large-scale migration)”.

3. The delegate noted that Post had interviewed a number of relevant individuals in Pakistan and that (CB178):

   “Apart from a bomb blast in nearby Rawalpindi on 21 November 2012, targeting a Shia Moharram procession (CX309202), there have been scant recorded instances of sectarian violence in Islamabad since 2009.”

4. Having dealt with the situation in Parachinar, the delegate went on at CB181 to deal with information relating to the Pak Haidery Scouts, noting there had been attacks in Karachi in 2011. 

5. The delegate expressed considerable doubts about the documentation filed in support of the application and noted that there were no recorded instances of Pak Haidery Scouts being targeted in Islamabad at all (CB183). 

6. The delegate did not believe the applicant’s evidence about the alleged threatening phone calls from Sunni elements and did not accept that he had a profile such as to be targeted, and did not accept that Shias are actively targeted in Islamabad.  The delegate did not accept that the applicant was likely to be the subject of attack in Islamabad (CB184). 

7. The delegate went on to dismiss the applicant’s claim under the Refugee Convention and the complementary protection criterion. 

8. I have not dealt with the decision of the delegate in greater detail because, in my view, it is the country information that was referred to by the delegate that is relevant for present purposes. 

The applicant’s agent’s submission to the Tribunal

1. The materials forwarded by the applicant’s migration agent to the Tribunal are at CB231-286.  It is not entirely clear whether the documents at CB276-286 were forwarded with the written submissions but it seems more probable to me than otherwise that they were.  There is no other likely source for them. 

2. The submission claimed “protection on the basis of his religion, an [sic] imputed political opinion and membership of at least one particular social group” (CB232). 

3. The submission raised the applicant’s Shia faith and his associated activities with the Pak Haidery Scouts in Islamabad.  The submission identified differences in religious observance between Shias and Sunnis, and the religious festivals particularly observed by Shias, including Moharram (CB232-233). 

4. The submission is interspersed with copious country information. 

5. The migration agent’s submission sets out substantial amounts of country information.  Without going through each and every piece of such information it is fair to say that the country information quoted shows very serious difficulties faced by Shias in Pakistan with particular emphasis upon Balochistan, Karachi and the Federally Administered Tribal areas. 

6. I note at CB243 the UNHCR eligibility guidelines asserted:

   “In the last year sectarian violence targeting the Shia minority, including through attacks on Shia processions and religious gatherings and sites, reportedly continued.  Such attacks were carried out predominantly in the North-West of the country - including in Dera Ismail Khan, Hangu, Kohat and Tank districts of Khyber-Pakhtunkhwa province, and Kurram and Orakzai Agencies in FATA – as well as in urban centres throughout the country – including Gilbit (Northern Areas), Lahore (Punjab province), Karachi (Sindh province) and Quetta (Balochistan province).”

7. I note, however, that Sunni militant groups were reported by UNHCR guidelines as operating with impunity “including in areas where State authority is well established, such as Punjab province and Karachi” (CB244). 

8. I note that at CB246 the Refugee Review Tribunal Research Response stated inter alia:

   “Terrorist violence is not confined to the north-western tribal belt bordering Afghanistan.  It is rampant in urban centres such as the federal capital Islamabad, Karachi, Quetta and Lahore and other major cities, particularly in the most populous province, Punjab [within which falls Rawalpindi].”

9. I note that at CB257 the HRCP Report 2010 recorded:

   “A total of 963 people were injured in such attacks, including 628 people in suicide attacks.  In sectarian attacks in 2010, the terrorists targeted religious processions and mosques of the Shia sect in Rawalpindi, Sargodha and Lahore”

10. I think I have set out all the extracts (these are the ones I was able to find) in the agent’s submissions, which touched on country information in Islamabad and Rawalpindi.  It is clear that the appalling violence inflicted upon Shias in Pakistan is concentrated, so far as the materials filed reveal it, more particularly in Balochistan, Karachi and the FATA and the north-west of the country more generally. 

The reasons of the Tribunal

1. The Tribunal set out the application for review and the relevant law at CB351-353.  No objection has been taken to those matters. 

2. The Tribunal moved to consider claims and evidence at CB353 and at paragraphs 21-25 (CB354) said:

   “21.  The applicant’s claims can be summarised as follows.  He is a Bangash Shia who was born in Parachinar, Kurram Agency, Pakistan in 1993.  He lived there until July 2008 when he moved to Islamabad to study at the USWA College and Islamabad Secretarial.  He has obtained a diploma as an administrative officer.  He was employed as a marketing consultant from September 2010 to November 2012.  He has parents and seven siblings who still reside in Pakistan.  One of his brothers live in Islamabad, his father has moved to Oman and the other family members have moved back to Parachinar after he left the country.

   22.  The applicant and his family left Parachinar because of the fighting and threat from the Taliban.  Their house was damaged and his uncle and a cousin were injured in the conflict by mortar and another cousin and many of his friends were also killed. 

   23.  In Islamabad the applicant was a very active member of the Shia community and used to assist people from Parachinar to get settled even using some of his own money.  He helped them find jobs.  He took part in a large protest in 2012 for Shias with many students in attendance regarding the situation in Parachinar.  He camped outside the Press Club for many days and protested every Friday marching from the Press Club to Parliament.  The protest went for 100 days and the applicant used to take part.  He started to get phone calls from an unknown number on his mobile after the protest ended in August.  He never picked them up as he knew they were from groups such as Lashk-e-Jangvi, Sepah-e-Sahaba and the Pakistani Taliban who were targeting Shia in Islamabad.  He was advised by his parents not to pick up such calls.  He would change his number often but would still get these anonymous calls.

   24.  The applicant was involved in an organisation called Pak Haidery Scouts Islamabad who provide humanitarian relief and are involved in religious festivals such as Muharram and the Ashura procession.  The applicant worked as a security team leader during the Muharram procession in 2012.  He noticed there were a few unusual looking people around and he believed they were Sunni extremists.  There were police around so nothing happened.  One person kept looking at him and he believed he was a Sunni by the way he dressed.  The applicant was followed on two occasions by two men on motorbikes.  They were different people each time.  They followed him home from the markets in Showk.  He was also followed home by a Sunni looking and dressed person when he was walking with a friend during the same Muharram time.  He feared he would be targeted because he was a security co-ordinator.  His student visa was approved during Muharram so he organised his tickets and departed one week later.  The applicant travelled to Australia in November 2012 on a student visa. 

   25.  It was submitted that the applicant would be at risk due to his membership of a particular social group of returnees from a Western country.”

3. The Tribunal dealt with independent country information at CB355-361.  It noted the description of the Pak Haidery Scouts as a scout group and as a body leading the main processions in Moharram and otherwise.  The Tribunal noted attacks on Pak Haidery Scouts in Karachi (CB355-356). 

4. The Tribunal noted at CB357, the UNHCR eligibility guidelines which set out the sectarian violence against the Shia minority and the inadequate nature of State protection. 

5. At CB358-359 (paragraphs 36-39) the Tribunal set out country information about Islamabad-Rawalpindi.  The Tribunal noted the combination of Islamabad-Rawalpindi had a population of about 4.5 million inhabitants and noted the attacks in 2010 in Rawalpindi, Sargodha and Lahore.  The Tribunal noted a suicide bomber detonating his device in Rawalpindi in December 2009 killing two people as he was endeavouring to enter a Shia gathering commemorating Ashura.  The Tribunal also noted at paragraph 37 (CB358) that on 22 November 2012 at least 23 people were killed by a suicide bomber at a Shia Muslim procession in Rawalpindi at the start of Muharram and that a further suicide bomber was killed in August 2013 attempting to enter a Shia mosque on the outskirts of Islamabad. 

6. The Tribunal also noted the risk of kidnapping in Islamabad-Rawalpindi of members of the Turi community and also noted that a Turi student group, Youths of Parachinar, routinely stage political rallies in Islamabad including a camp at the National Press Club in Islamabad (CB359, paragraph 39). 

7. The Tribunal also dealt with the situation in the Kurram Agency but that is not now of relevance. 

8. The Tribunal’s assessment of the applicant’s claims runs from CB361-366.  The Tribunal accepted that the applicant was a Bangash Shia born in Parachinar who had lived there until July 2008 when he moved to Islamabad to study.  The Tribunal accepted that this move was because of fighting and threats from the Taliban in Parachinar and the Tribunal clearly accepted the applicant’s account as to the difficulties faced by and his family.  At paragraph 50 (CB362) the Tribunal said:

   “I accept given the length of time he spent there that Parachinar is a home area of the applicant.  However, the applicant lived in Islamabad for four years where he worked and studied.  At the hearing, he gave evidence that his mother and other siblings have moved back to Parachinar, that his father is in Oman and that only his brother remains in Islamabad.  I put to the applicant that I may also consider Islamabad to be a home area and he said that he was more than 100% sure that people would kill him there and that he had participated in a protest and had made banners.  His agent later made an oral submission that Parachinar should be considered his only home area as the balance of his family lived there and he would be the only person in Islamabad other than his brother who was boarding there for schooling and that the applicant did not have a family home there as the family had stayed there with friends.  I have considered these comments, but an applicant can have two home areas and the applicant resided in Islamabad for four years prior to coming to Australia.  He obtained a diploma there and worked as a marketing consultant for over two years there.  He was an adult at the time he departed Islamabad and Pakistan for Australia and had lived in Islamabad for a period as an adult.  Though he may not have much in the way of current family connections there, I find that Islamabad is also a home area for him and have assessed his claims against this area.”

1. The Tribunal accepted that the applicant in Islamabad regularly practiced Shia faith and attended mosque three times a day.  The Tribunal accepted the applicant’s claims that he assisted people from Parachinar to become settled and accepted that he took part in a large protest in 2012 for Shias regarding the situation in Parachinar.  The Tribunal accepted that he had camped outside the Press Club for many days and protested on each Friday then marching to parliament.  The Tribunal accepted that the applicant had held up banners at these protests but did not publicly speak. 

2. The Tribunal accepted that the applicant was involved in the organisation called Pak Haidery Scouts as he claimed and that he acted as a team leader controlling about 15 to 20 persons on behalf of the Scouts at processions (paragraph 52 CB362-364).  The Tribunal went on to say at paragraph 53:

   “I do not accept that the applicant was ever targeted as he has claimed for his involvement in the demonstrations or for his involvement in the Pak Hyderi Scouts.  I do so for the following reasons:

   The applicant has claimed that he received phone calls from an unknown number after his participation in demonstrations but that he did not answer them on the advice of his friends.  He claimed he changed his own number twice but that he still received them.  At the hearing, the applicant stated that maybe these people got his number from a shop and they were very organised.  He said that a friend of his told him that someone from the Lashk-e-Jangvi group wearing a scarf and beard had asked for his number.  As put to the applicant for comment, I find that the applicant’s claim that these calls were from Sunni extremist groups to be very speculative as he did not answer them to find out who actually were the callers or what they had to say and there is no cogent explanation as to how these people were able to obtain his new mobile numbers.  Even if I accept that that a person from a Sunni group wearing a scarf and beard asked for his number the applicant did not state that his friend gave it to this person and there is no reason his friend would.  I consider his fear in this respect to be highly speculative and I do not accept that he received phone calls from members of Sunni groups.

   At the hearing for the first time, the applicant claimed that a friend of his and fellow activist had received threatening calls and had been hit by a car after the applicant came to Australia.  Whilst I accept that this person may have been hit by a car, I again find the claim that this was due to intended action by Sunni extremists to also be highly speculative and do not accept that it was a deliberate action.  At the hearing, the applicant gave evidence that he had spoken to the friend’s father who said his son had been hit by terrorist groups.  The applicant said the father had told him that they did not have evidence and no specific person had been sought by the police but that the father believed it was by such groups. 

   The applicant claimed that at one procession a Sunni person was looking at him but that nothing happened because the police was around.  He also claimed that there were a few unusual looking persons around at a procession and he believed that they were Sunni extremists.  I accept that there were Sunni persons in the vicinity of these parades and that one looked at him but I find his suspicion that they were extremists and that they were gathering information on him and the procession to be highly speculative as they did not do anything more at that time. 

   The applicant claimed that he was followed on two occasions by men on motorbikes.  On the first occasion he claimed that they were wearing Lashk-e-Jangvi scarfs and that he ran from the road into a market to escape them.  On the second occasion, two day later, he said he escaped by walking fast to his home.  He also claimed that there was another occasion when he was followed home by a person who looked like a Sunni and who he thought was familiar as if he had seen him before in Parachinar.  Again, I find the applicant’s evidence to be highly speculative that these men were seeking to target him.  According to his evidence, none of these men said anything to him and it is implausible if they were on motorbikes that they were not able to harm him on two separate occasions.  The fact that they said nothing to him and did not do anything else leads me to reject that the applicant was being followed by Sunni extremists as claimed.

   Though I have accepted that the applicant participated in demonstrations his role was rather limited to holding up banners – he did not publically speak as others did.  His limited role would also have reduced the prospect of him being targeted in the manner he has claimed.  The applicant claimed that his security role in the processions and because he was a Bangash Shia was a particular reason as to why they would have targeted him.  However, as I put to him for comment at the hearing the Pak Hyderi scouts (according to their website) have more than 1000 registered scouts, they are active in Islamabad in leading processions and the Tribunal has not identified any reports of Pak Hyderi Scout members there being targeted.  I have taken into account that he is a Bangash and had a security role in processions, but the country information does not establish that Scout members are being targeted there (though there is some evidence of targeting in Karachi in the country information set out above). 

   The applicant claimed at the hearing that there was an occasion in August/July of 2012 during a demonstration that he was hit on the leg with a stick by Sunnis but he did not make any reference to this in his detailed statutory declaration.  I have taken into account the applicant’s comment that he stated in this he would give further and complete information in an interview with a delegate but given the importance of this incident (the only time he has claimed any physical harm) his failure to mention it in his statutory declaration leads me to reject that it occurred.”

3. The Tribunal went on as a result of the concerns thus expressed to reject the applicant’s assertions that he had received threatening phone calls from Sunni extremists or anyone else.  The Tribunal comprehensively rejected the applicant’s history insofar as it touched on these matters. 

4. The Tribunal went on to deal with the applicant’s claims as a member of the Pak Haidery Scouts/Shia.  Essentially the Tribunal found at paragraphs 56 and following (CB364):

   “56.    … Based on his individual circumstances and the lack of report of  Scouts being targeted in Islamabad, I find that the chance that he will be seriously harmed or significantly harmed there by Sunni extremists on account of his past and future involvement in this organisation to be remote. 

   57.  The applicant has claimed that he will be at risk due to being a Shia and I accept that he is devout and a regular attendee at mosque.  The applicant has not claimed to have been restricted to go to mosque to pray and I note that he was able to complete a diploma and work as a marketing consultant in Islamabad without difficulties.  I have considered carefully the country information submitted by the applicant and referred to in the agent’s submission.  However, as put to the applicant at the hearing there has not been an attack on Shias in this Islamabad since 2010 other than one bombing in November 2012.  I have taken into account that there was a failed suicide attack in August this year and that in recent days there has been sectarian violence between Shias and Sunnis in nearby Rawalpindi during a Muharram procession in which at least 10 persons have been killed.  However, as put to the applicant I have to consider the situation in the context of Islamabad-Rawalpindi having a large population of 4.5m.  I have taken into account the reports of attacks on Shias in Pakistan as set out in the above country information.  I have taken into account information that I put to the applicant for comment, namely the advice of the UNHCR that they consider that members of the Shia community, particularly in those areas where Taliban-affiliated groups are active, such as the northwest of Pakistan and in urban centres, may, depending on the individual circumstances of the case, (my emphasis) be in need of international refugee protection on account of their religion and/or (imputed) political opinion.  The UNHCR was not saying that all Shias were at risk but that individuals might be depending on their circumstances.  I am aware there are reports on attacks on Shias in Pakistan (as referred to in the above country information) but I need to consider these in the context of information that around 15-30% of Pakistan’s 190m population is Shia.  When considering the country information as a whole and the number of incidents in the Islamabad-Rawalpindi area and his individual circumstances, I find that the chance that the applicant will be seriously harmed or significantly harmed there by Sunni extremists to be remote. 

   58.  I have accepted that the applicant has been involved in demonstrations for the rights of Shias as he has claimed.  I do not however accept that he has ever been targeted or mistreated by Sunni extremists in the past.  His involvement was limited and he did not develop a high profile by speaking publically at these events.  I accept that when the applicant returns he will continue to attend such events, but considering his individual circumstances and the lack of targeting of him in the past and the country information concerning the situation for Shias in Islamabad, I find that the chance that he will be seriously harmed there by Sunni extremists on account of his political opinion and religion to be remote.  I do not accept that the applicant faces a real chance of persecution in the reasonably foreseeable future from Sunni extremist groups or anyone else because of his political opinion and religion. 

   59.  Considering the country information and his individual circumstances, I find that are not substantial grounds for believing as a necessary and foreseeable consequence of him being removed from Australia to Pakistan that there is a real risk that he will suffer significant harm at the hands of Sunni extremist groups or anyone else.”

5. The Tribunal went on to consider the applicant’s claims of potential risk as a member of the Bangash or Turi tribes but concluded that he would not face such risks given his circumstances and the likelihood of his returning to Islamabad.  The Tribunal also dismissed the applicant’s claims to fear harm as a returnee from a Western country. 

6. The Tribunal found at paragraphs 64-65 (CB366) that considering all the applicant’s claims cumulatively he did not face a real chance of persecution in the reasonably foreseeable future in Pakistan for any reason whether Convention or non-Convention and dismissed the applicant’s claims pursuant to the complementary protection regime. I note that the Tribunal has set out the definition of serious harm in relation to persecution arising from s.91R of the Migration Act 1958 (“the Act”) (CB352 paragraph 9) and has also set out a paraphrase of the complementary protection criterion. 

The grounds of the application

The Tribunal engaged in jurisdictional error by misconstruing or misapplying the relevant legal test where the applicant has a “well- founded fear” of being prosecuted, persecuted for a Conventional reason

1. I have not set out the particulars to this ground in full as they are relatively lengthy.  Having referred to various findings that the Tribunal made, the particulars assert relevantly at subparagraphs c. and d. that:

   “c.     Notwithstanding its reasoning summarised in (a) and (b) above, the Tribunal found that the chance of the applicant being seriously harmed by Sunni extremists on account of his religion and/or political opinion was “remote” (Tribunal Decision at [56]-[58].

   d.    In so finding, the Tribunal misconstrued or misapplied the applicable legal test in that the Tribunal required a greater degree of satisfaction of the occurrence of the claimed persecution than that required by law.”

2. The kernel of this ground of appeal is set out at paragraph 24 of the applicant’s written submission is as follows:

   “This ground of review is that the Tribunal engaged in jurisdictional error by misconstruing or misapplying the applicable law by requiring a greater degree of satisfaction as to the likelihood of the occurrence of the claimed persecution than that required by law; that is, the Tribunal failed to understand and correctly apply the ‘well-founded fear’ or ‘real chance’ test.”

3. The written submissions point out that the Tribunal had accepted that the applicant was a Bangash Shia, that he was devout and attended mosque three times a day and that for reasons of religious devotion had joined the Pak Haidery Scouts.  The written submissions also correctly assert that the Tribunal found there had been several recent instances of sectarian violence and terrorism against Shia Muslims, including in a procession in Rawalpindi in late 2013.  The written submissions continue at paragraph 31:

   “Despite its reasoning as summarised in [29]-[30] above, the Tribunal nevertheless found that the applicant did not have a well-founded fear of persecution or face a real chance of persecution; rather, any chance of persecution was remote.  Such a finding must result from the Tribunal misconstruing or misapplying the well-founded fear or real chance test.”

4. At paragraph 33 the written submissions continue:

   “Had the Tribunal correctly applied the test, whether the applicant – a Shia Muslim living in Islamabad–Rawalpindi that regularly attended mosque and provided security to Shia religious processions and festivals – had a “well-founded fear” of persecution or faced a “real chance” of persecution, given its findings about recent incidents of violence against Shia mosques and Shia religious processions and festivals in Islamabad-Rawalpindi, a reasonable decision-maker applying the correct test would have concluded that the “well-founded” fear test or “real chance” test was satisfied.  Given the applicant’s background and features, and the independent country information, there was a reasonable degree of likelihood that the applicant faced persecution from Sunni extremists; or, such persecution was a reasonable possibility; or, such persecution was a real chance, even if less [sic] far less than a 50 per cent chance of occurring.  Therefore, the applicant’s fear of persecution was well-founded and the applicant was a person in need of Australia’s protection.”

5. The oral submissions expanded upon these matters.  It was asserted that the error is disclosed in paragraphs 56-57 of the Tribunal’s decision (already set out above).   It was submitted that it was clear that terrorist attacks in Islamabad have focused on religious processions.  It was submitted that the Tribunal had not properly considered the risk to the applicant in particular.  It was further submitted that the Tribunal erred because it had not considered whether Shias were spread evenly throughout Pakistan, merely concentrating upon the overall percentage of Shias in the country. 

6. It was submitted that the Tribunal had not cited any country information which would contradict that of the applicant and it was submitted that there was general violence in Islamabad.  It was submitted that the Tribunal’s finding that violence in Islamabad is limited was not open and that the Tribunal had failed properly to engage with and actively consider the country information before it. 

7. The first respondent’s written submissions naturally enough took issue with these assertions.  Reference was made to the copious fact findings made by the Tribunal.  The first respondent’s written submissions correctly point out that the Tribunal had set out the correct legal test at paragraph 12 of the decision and had noted that a possibility of harm could well be below 50 per cent. 

8. Put shortly the first respondent’s submission was that the findings of the Tribunal were well open to it on the material and that ground 1 essentially consisted of merits review. 

Consideration

1. It is to be remembered that this is an application for judicial review.  It is not a question of the Court looking at the material and deciding whether it itself would come to the same conclusion as that of the Tribunal.  It is a matter of deciding whether the Tribunal fell into jurisdictional error within the well-defined (albeit elastic) limits of the law relating to judicial review of administrative action that have flowed from the seminal case of Craig v South Australia (1995) 184 CLR 163. In my opinion the Tribunal’s decision when read fairly and as a whole shows that the Tribunal well understood the task it was required to consider. The country information, and most particularly that of the UNHCR, made it clear that while Shias faced risk in Pakistan (something that is not controversial) the extent of those risks would depend upon the individual circumstances of the particular person.

2. The Tribunal considered the applicant on the basis that he would return to Islamabad, this being a finding that in my view was well open to it on the material.  He had lived there for four years including two years’ worth of employment as an adult. 

3. The Tribunal was aware that there were dangers to the applicant in Islamabad in the sense that there had been attacks on Shias in the past in both Islamabad and Rawalpindi. 

4. From my part, I would have perhaps given greater emphasis to the fact that there were recent disturbances involving Shia processions in Islamabad, and deaths as a result, than the Tribunal did.  Nonetheless the Tribunal clearly turned its mind to these matters and even if the Tribunal was in error as to the number of Shias in Islamabad, as the applicant submits is the case (the matter might be thought not conclusively demonstrated), this would be an error of fact within jurisdiction. 

5. The essence of the submission advanced by the applicant is that the materials before the Tribunal admitted of no other conclusion whatever than that the applicant did face a real chance of harm in the event that he was returned to Islamabad.  In my view the materials as they were, were not such as to compel no other conclusion. 

6. It accordingly follows that this ground is not made out. 

Ground two

The Tribunal engaged in jurisdictional error by taking into account irrelevant considerations, or failing to take into account relevant considerations, in applying the relevant legal test where the applicant has a “well-founded” fear of being persecuted for a Convention reason.

Particulars

a.The Tribunal accepted that the applicant was a Bangash Shia, a member of the Pak Hyderi Scouts, and had provided security and other assistance to Shia religious processions (Tribunal’s Decision at [56]).

b.The Tribunal accepted that members of the Pak Hyderi Scouts in Karachi had been the targets of sectarian violence (Tribunal’s Decision at [29]), and that Shia mosques and processions in the Islamabad-Rawalpindi area had been targeted by sectarian violence (Tribunal’s Decision at [37], [57]).

c.Nevertheless, the Tribunal found that the risk of serious harm to the applicant was “remote” because, inter alia:

i)there were no reports of Pak Hyderi Scouts being targeted or mistreated in the Islamabad-Rawalpindi area (Tribunal’s Decision at [56])l;

ii)the Islamabad-Rawalpindi area has a population of 4.5 million people (Tribunal’s Decision at [57]); and

iii)the applicant had not been personally targeted by Sunni extremists in the past (Tribunal’s Decision at [58]).

d)Given the Tribunal’s findings in (a) and (b) above, the matters particularised at (c)(i)-(iii) above were irrelevant considerations.

e)Alternatively, by considering the matters particularised in (c)(i)-(iii) above, the Tribunal failed to consider the relevant matter, being whether the applicant, as a Bangash Shia and member of the Pak Hyderi scouts, faced a real chance of persecution for a Convention reason.

1. The written submissions of the applicant concentrate upon paragraph 57 of the Tribunal’s reasons.  The paragraph contains assertions that the population of Pakistan is 190 million of which 15 to 30 per cent were Shia Muslims, and that Islamabad-Rawalpindi had a population of 4.5 million.  As a result the Tribunal concluded that the chances of the applicant being seriously harmed or significantly harmed there by some extremists were remote. 

2. It was submitted that although the Tribunal had stated that it had considered the applicant’s individual circumstances there was no evidence of consideration of these individual circumstances in paragraph 57 of the reasons.  It was submitted the Tribunal focused on what were described as ordinary Shia and not on the applicant in particular.  It was further submitted there was no consideration of the country information and circumstances where the UNHCR information disclosed that Shias were attacked all over Pakistan.  It was submitted that the Tribunal simply failed to engage with the real chance test. 

3. It is clear of course that there was a measure of overlap between the grounds one and two. 

4. Counsel referred the Court to DZADQ v Minister for Immigration and Border Protection [2014] FCA 754 (“DZADQ”), a case in which Mansfield J concluded that the Tribunal had not engaged in an active intellectual process with the country information as a whole or alternatively failed to address the applicant’s position in accordance with the law in relation to its findings based on the country information (see at [52]). At [65] Mansfield J went on to say relevantly:

   “… 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.”

5. Counsel for the first respondent emphasised that the Tribunal’s decision needs to be read as a whole.  It was submitted that the population statistics were used by the Tribunal merely to place the likelihood of harm in context.  It was strongly submitted that the decision in DZADQ turned on different facts.  It was submitted that in this case the Tribunal had looked at the applicant’s claims and indeed had decided them. 

6. Here the first respondent emphasised the findings that the Tribunal made set out at paragraph 23 of the first respondent’s written submissions that:

   “a.    The Applicant himself had not been targeted by Sunni extremists and the incidents relied upon by the Applicant were highly speculative.

   b.    There was no evidence that relevant religious processions and festivals involving Scouts such as the Applicant had been targeted in Islamabad.  Such attacks had occurred in Karachi and there existed doubts that all attacks were intended to target Scouts in any event.

   c.     Only one successful attack had occurred on Shias attending mosques in Islamabad since 2010, amongst a population of 4.5 million people.

   d.    Recent sectarian violence had to be seen in the context of a large Shia population in the country.”

Consideration

1. Once again, this matter raises similar considerations to ground 1.  I repeat that it is not a matter of whether the Court as presently constituted would have reached the same conclusion as the Tribunal.  I refer to and repeat the matters already said in this regard. 

2. Nonetheless, unlike the decision of Mansfield J in DZADQ which in my respectful view correctly pointed out that the Tribunal moved from the statistic (40 million Shias in the country) to the conclusion that the applicant in that case was not at risk without giving any detailed consideration as to why that conclusion flowed from the former proposition, in this case there was a more detailed exposition of matters which supported the conclusion. 

3. The Tribunal was of course required to engage with the country information and in my view did so.  A detailed examination of the country information shows that the violence asserted against Shias simply did not generally obtain in Islamabad or Rawalpindi.  The Tribunal’s conclusion that there had only been one attack (and one attempted attack) was in my view largely correct.  If incorrect it was an error of fact within jurisdiction. 

4. The Tribunal did not fail to engage with the applicant’s particular circumstances.  The Tribunal dismissed the matters which might be said to have given rise to the likelihood of attack upon him on the basis of his own personal profile. 

5. Once that was done, necessarily the Tribunal was looking to the future by reference to inter alia to the past to examine whether the generalised risk faced by Shias in Islamabad would be such as to expose the applicant to such a risk.  In my view the Tribunal’s conclusions on the facts were open to it and do not disclose some misapprehension of the task the Tribunal was required to undertake.  This ground must fail. 

6. It should be noted that the submissions made have been paraphrased from my notes and not from transcript.  The submissions appeared to me from time to time to move seamlessly from ground 1 to ground 2, and I would note that it is possible that some of this judgment has done so also. 

Ground 3

The Tribunal erred by failing to ask itself the correct question. 

Particulars

a.      The Tribunal failed to apply the approach taken by the High Court in SZSCA v Minister for Immigration and Border Protection [2014] HCA 45.

b.     The Tribunal found that the applicant had two home areas, Parachinar and Islamabad (Tribunal’s Decision at [50]).

c.      The Tribunal then assessed the applicant’s claims for protection in relation to him residing in Islamabad only, and found that the applicant did not have a well-founded fear of persecution in Islamabad.

d.     The Tribunal’s approach implied that the applicant would remain in, and not leave, Islamabad.

e.      In so doing, the Tribunal did not address “what was necessary to an enquiry whether it was reasonable to expect” the applicant to remain in, and not leave Islamabad or Rawalpindi (SZSCA at [32]).

1. Counsel took the Court to paragraph 50 of the Tribunal’s decision, set out above, in which the Tribunal concluded that Islamabad was a home area for the applicant and had assessed his claim against that conclusion.  In SZSCA the High Court identified at [29] the following error:

   “The Tribunal in this case did not consider that the internal relocation principle applied, because the respondent already lived in Kabul.  The Tribunal therefore did not consider the question whether the respondent could reasonably be expected to remain there and not transport materials on the roads outside Kabul, where he would be at risk of harm.  This was an incorrect approach.  Although the respondent had lived in Kabul since 2007, he had not been confined to that area and his work had taken him outside it.  An expectation that he now remain within Kabul raises considerations analogous to those with which the internal relocation principle is concerned – specifically, whether such an expectation is reasonable.”

2. Counsel for the applicant submitted that his position was essentially the same.  The applicant had moved to Islamabad in 2008 but he had always lived in Islamabad with his family.  The Tribunal it was submitted did not consider whether it was reasonable for the applicant to stay there without his family.  It was submitted that there was no consideration of the reasonableness of the applicant remaining in Islamabad. 

3. Counsel for the first respondent submitted that the facts in SZSCA were different, and I accept that because in that case the evidence was that the applicant lived in Kabul but was required to work outside it where he was at risk.  Here the evidence is that the applicant lived in Islamabad from 2008 to 2012.  He did not have to travel outside that city. 

4. Counsel for the first respondent submitted that it was important to consider the claims as the applicant put them.  His claims of fear were based on Islamabad and there was nothing to say that he would not stay there. 

5. Counsel submitted, correctly in my view that the Tribunal accepted that the applicant would act in the same way as he had before he left Islamabad and therefore the applicant was not being expected to change, as was the case in SZSCA, upon his return. 

6. It is sufficient to say that I accept that the Tribunal dealt with the applicant’s claim as it was put.  While the applicant gave details of where his family were now living, there was nothing in what he said that suggested that he would not remain in Islamabad if returned to Pakistan.  Indeed as was correctly pointed out by counsel for the first respondent, the basis of his claims was all articulated on the clear understanding that that was where he would live. 

7. The case of SZSCA turned upon materially different facts and the Tribunal in this case did not fall into the error identified by the High Court in that one. 

Conclusion

1. None of the applicant’s grounds are made out and it therefore follows that the application will be dismissed.  

I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Judge Burchardt. 

Associate: 

Date:  29 January 2015