Philips v Minister for Immigration and Multicultural Affairs

[2000] FCA 957

FEDERAL COURT OF AUSTRALIA

Philips v Minister for Immigration & Multicultural Affairs [2000] FCA 957

ROOHI BANO PHILIPS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 355 OF 2000

LINDGREN J
18 JULY 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 355 OF 2000

BETWEEN:	ROOHI BANO PHILIPS APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	LINDGREN J
DATE OF ORDER:	18 JULY 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   The application be dismissed.

2.   The applicant pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 355 OF 2000

BETWEEN:	ROOHI BANO PHILIPS APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	LINDGREN J
DATE:	18 JULY 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Introduction

1. Section 29 of the Migration Act1958 (Cth) (“the Act”) provides that subject to the Act, the respondent (“the Minister”) may grant a non-citizen permission, to be known as a visa, to do either or both of the following:

   (a)travel to and enter Australia;

   (b)remain in Australia.

2. The applicant (“Ms Philips”) applies under s 476(1) of the Act for review of a decision of the Refugee Review Tribunal (“RRT”) affirming a decision of a delegate of the Minister (“the Delegate”) not to grant her a protection visa permitting her to remain in Australia. It is not in dispute that the Minister delegated all relevant powers to the Delegate pursuant to s 496 of the Act.

3. Section 65 of the Act provides that after considering a valid application for a visa, the Minister, if satisfied of the matters specified in the section, is to grant the visa, or, if not so satisfied, is not to grant the visa. One of the matters specified in s 65 is that the criteria for the visa specified by the Act or the regulations have been satisfied. Section 36 of the Act provides that a criterion for the grant of a protection visa is that the applicant for it is a non-citizen in Australia to whom Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951, as “amended” by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (compendiously, “the Convention”).  

4. Article 1A(2) of the Convention provides that a refugee is any person who:

   “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

5. Criteria to be satisfied by an applicant for a protection visa at the time of the decision on the application also include the criterion specified in cl 866.221 of Schedule 2 to the Migration Regulations 1994, which is, that the Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Convention.

6. The RRT’s decision was a “judicially reviewable decision” (s 475(1)(b) of the Act): the Applicant was entitled to apply to this Court for review of it on certain grounds (s 476); and the Court has the jurisdiction provided by Part 8 of the Act, but no other jurisdiction with respect to it (ss 485, 486).

7. Ms Philips’ case is that she is outside the country of her nationality, Pakistan, and is unwilling to return to it because of a well-founded fear of being persecuted for reasons of religion and membership of a particular social group, Christian Pakistani women.

   Procedural background

8. Ms Philips arrived in Australia on 25 October 1996.  On 11 March 1997, she applied for a protection visa (visa sub-class 866). The Delegate refused the application.  The RRT affirmed the Delegate’s decision on 2 September 1998.  Ms Philips sought review of the RRT’s decision by this Court and on 8 March 1999 the Court set aside the decision by consent and remitted the matter to the RRT to be determined according to law.  The RRT, differently constituted, conducted a hearing on 24 August 1999.  On 16 March 2000, the RRT affirmed the Delegate’s decision.  On 13 April 2000, Ms Philips filed her application in this Court for review of the RRT’s decision.

   The reasons for decision of the RRT

9. The RRT commenced its reasons for decision by referring to the procedural background, the legislative framework and the law relating to the Convention definition of a “refugee”.  It then turned to consider Ms Philips’ claims and evidence.

10. Ms Philips is a thirty year old unmarried Pakistani woman. She is a Christian and comes from a Christian family. She has one sister and three brothers.  One brother was an applicant for refugee status in Australia at the same time before the RRT.  Her father studied to be a Minister of Religion in Abbottabad.  He became an itinerant pastor and joined the Assembly of God church some time before 1980.  He continued to perform his pastoral duties, including conducting house churches, until mid-1998 when he became ill.

11. Ms Philips attended a Christian primary school in Gujranwala, where she participated in Christian theatrical productions in an open area in the town at Christmas and Easter.  Muslim boys teased and bothered the participants, especially the girls, and on one occasion a fight broke out between the Christian and Muslim boys.  Ms Philips felt that when she was growing up she could not walk around freely because people might trouble her.

12. A few days later, some Muslim boys broke into Ms Philips’ house and tied up her aunt, father and grandfather.  Ms Philips was asleep next to her sister and she woke up to see a boy leaning over her.  When the sisters screamed, he put his hand over Ms Philips’ mouth and slapped her.  Her cousin came in, hit the boy with a kerosene bottle and chased the boys out of the house. They did not return.  Ms Philips went into hiding following the incident, staying with various relatives.  Ms Philips claimed that the boys subsequently came to the house to inquire as to her whereabouts.  When the RRT suggested that it would be foolish for the boys to return to the house for that purpose, she responded that it was people associated with the boys, rather than the boys themselves, who came to the house. The RRT asked how she knew this and she responded that it was obvious that they would act this way.  She claimed that the boys were interested in her because she was a Christian.  The RRT put it to her that she was simply the victim of hooligans looking for trouble and choosing a house at random. She responded that she would be safe only if she was a Muslim.

13. Ms Philips said there was no point complaining to the police as they would not help, especially in cases involving threats against Christian women. The family became afraid after this incident and they moved to Karachi via Lahore, after selling the family home. 

14. In Karachi, Ms Philips went to a Christian girls’ school close to her home.  Muslim boys would tease and harass the girls (she was not sure whether it was all the girls or only the Christian girls).  She began to stay at home because she was afraid the Muslim boys would assault her at school.  Ms Philips claimed that she was subjected to much intimidation in Karachi.  The RRT pointed out to her that Karachi is renowned as a very violent city and asked whether anything specific happened to her and her family there, other than general harassment generated by the high level of violence.  Ms Philips claimed that it was just the boys who made her afraid of going out.

15. In 1991 after political violence in the area, Ms Philips’ brother-in-law arranged for the family to leave Karachi and live in Chaklala III, near Rawalpindi.  In the same year, the family built a house in Gujranwala and Ms Philips went back there to live with her family.  Soon after the wedding of her brother Rafiq in late 1991, the intimidation and harassment began again.  She feared youths who took her bag or grabbed her scarf. Sometimes they would come to the house trying to raise money to support a mosque or Islamic group.

16. One afternoon in 1995 Ms Philips was alone in the house and a man holding a tape recorder came to the door and pushed into the house.  He asked her to “say something against Mohammed” and grabbed her hair, hit her face and burned her thumb with a cigarette.  Her aunt then arrived and the intruder left through a side door.  (I shall refer to this as the “tape recorder incident”.)  When the Member asked Ms Philips why someone would bring a tape recorder to her house, she replied that “Muslims can do anything they like to the Christians”.

17. Her aunt was very worried for her and asked Ms Philips’ sister to help her to escape the constant intimidation and harassment. Ms Philips came to Australia on 20 July 1995 and stayed with her sister Rani in Coffs Harbour, returning to Pakistan in January 1996 when her visa was due to expire.  She claimed that she did not know at that time that she could apply for protection as a refugee. The RRT asked her why she did not attempt to extend her stay in Australia and she replied that she thought she would experience no problems and would be safe if she returned to Pakistan.  However, she did claim to have had problems after her return and referred to the tape recorder incident. When challenged by the RRT, she agreed that the tape recorder incident had occurred prior to her visit to Australia.

18. After her return to Pakistan, Muslim youths went to her brother’s shop and asked for donations for the mosque.  They tore down a picture of Christ on the wall and took her brother’s cassettes, hit him and told him that as a Christian he was lowly and inferior to Muslims, and must follow the rules of Muslims.  The RRT noted that in her original submission, she had claimed that this incident occurred before her visit to Australia in 1995 and that the youths had returned to the brother’s shop and destroyed it.

19. At this time, the family noticed problems with the telephone wires to their house and learnt that through corruption, people had used their number while the bill was sent to the family.  The gas pipes were damaged and the family was without gas.  The sewerage outlet was blocked and sewage flooded back into the house.  Ms Philips claimed that Muslims had known that the family was trying to sell the property and these problems caused prospective buyers to lose interest.  She told the RRT she thought these problems were continuing. She said that these problems could have happened to anybody but they happened to her family because they were Christians.  She also said that anything can happen in Pakistan and there is no such thing as law in Pakistan.

20. Her brother-in-law applied for Australian visas for Ms Philips and for her brother Rafiq.  Rafiq took the forms to the Australian High Commission in Islamabad but a local staff member demanded a bribe before accepting them.  Ms Philips’ brother-in-law arranged for an Australian solicitor to “send the form”, and afterwards the visa application was granted in October 1996. After arriving in Australia on 25 October 1996, Ms Philips went to live with her sister and brother-in-law in Coffs Harbour.

21. Ms Philips claimed that if she returned to Pakistan she would be in danger because of her religion.  She did not feel it was safe for her to live elsewhere in Pakistan.  She does not believe that the police would protect her as they are corrupt and do not protect minorities such as Christian women.

22. On 15 October 1999 Ms Philips’ adviser wrote to the RRT on her behalf to bring to its attention the recent military coup in Pakistan. Ms Philips submits that her previous experience  of military coups is that minorities like Christians face renewed hostility and have less protection under such a régime.

23. Ms Philips’ sister, Rani, who is an Australian citizen, made a statutory declaration in support of her sister’s application.  She returned to Pakistan in March 1999 for a memorial service for her father. She said that they could not have a public memorial service because of the Muslim youths, and had to have the service inside the house. She claimed that after the service a big man wearing a turban knocked at the door.  Rani’s aunt was in bed and screamed out for Rani.  Rani pushed the door closed on the man’s leg.  Rani’s aunt said that that man had come around asking where Rafiq and Roohi were. He yelled at the aunt that he would kill Rani. 

24. Rani claimed that the family home was in her name and that of her late father.  She wanted to sell the house.  She believed that she was prevented from having the house transferred into her name and sold because she and her family are Christian.

25. After the RRT hearing, Sister Gabrielle Jennings of the Notre Dame Institute of Education, Karachi, provided written advice to Ms Philips’ adviser.  She had visited Pakistan for the Sisters of Mercy every year between 1985 and 1988. She was the founding director of the Institute in Karachi in 1991 and was the Executive Secretary of the Pakistan National Catholic Education Commission from 1992 to 1998.  The RRT reviewed the evidence provided by Sr Gabrielle that Christians in Pakistan are subject to endemic persecution as a vunerable minority group. Sr Gabrielle referred to cases of mob hysteria and the destruction of Christian homes and villages. She said that cutting off resources to homes is a favourite way of driving owners from their property.  She also gave evidence about the overwhelmingly poor treatment of women in Pakistan.  In particular, Christian girls are often labelled as promiscuous because they are not required to cover their face, head and body in accordance with Muslim law.

26. The RRT also reviewed documentary evidence on Ms Philips on the Department of Immigration and Multicultural Affairs file and the RRT file relating to the first RRT proceeding.  The RRT then turned to the independent information it had before it on the situation of Christians in Pakistan.

27. The RRT accepted that Ms Philips’ claims were largely credible but not that they caused her to have a well-founded fear of persecution in Pakistan for a Convention reason.

28. The RRT accepted that the teasing and harassment she suffered in Gujranwala and in Karachi while a schoolgirl were upsetting but thought that they were not to be characterised as a “serious punishment or penalty” or a “significant detriment or disadvantage” amounting to persecution. 

29. In relation to Ms Philips’ claim of home invasion, the RRT stated:

    “there is no evidence before the Tribunal which satisfies it that this incident was anything other than a random attack by hooligans on an unsupecting family.  Just because the attackers were Moslems does not lead to the conclusion that they attacked the family because they were Christians.  They were just a couple of hooligans or common criminals out to target some defenceless people who were otherwise minding their own business.  The Tribunal accepts that this incident occurred but is not satisfied that it occurred for a Convention reason.  In any case, it was a single random attack which was never repeated in the many years which the applicant remained in Pakistan.  While the Tribunal accepts that a single act of harm is capable of amounting to persecution the Tribunal is not satisfied that there is anything other than a very remote chance that the incident will occur again in the reasonably foreseeable future causing the applicant to have a well-founded fear of perseuction”

30. The RRT found that in the context of the level of violence generally in Karachi at the time, the alleged harassment there was not targeted at Ms Philips for a Convention reason and did not amount to “persecution” within the Convention.  The RRT was also not satisfied that the general jostling, touching, pinching or theft experienced by Ms Philips in Pakistan generally or in Gujranwala in 1991 caused her to have a well-founded fear of persecution for a Convention reason. 

31. In relation to the tape recorder incident, the RRT found Ms Philips’ evidence implausible.  She had not mentioned this in her original submission to the Department and the RRT did not accept that the incident had occurred. However, it found that, even if it did occur, the incident was simply a single act of harassment which would not occur in the future.

32. The RRT found that the problems experienced by Rafiq, Ms Philips’ brother, in his shop did not affect Ms Philips in a persecutory way. 

33. Nor was the RRT satisfied that the interference with the Philips’ family home, utilities and telephone line was anything more than criminal conduct.  The family was not found to be targeted for a Convention reason.  The RRT continued:

    “The Tribunal notes the applicant’s claim that after her departure people started doing strange things to the family home back in Gujranwala.  She claims that the drains and sewage pipes were blocked and they had problems with the gas.  The applicant claims that these problems were caused by Moslems who wanted to drive the family out of the area.  The Tribunal notes, however, that the applicant still has relatives living in the house several years after these problems started.  This indicates to the Tribunal that the problems have been somewhat overstated by applicant.  The applicant’s aunt, cousin and one of her brothers continue to live in the house.  Her father lived there until his death in early 1999.  The Tribunal cannot accept that these relatives would have continued living in the house if they were suffering the harassment which the applicant and her sister have claimed has been occurring.  The Tribunal is not satisfied that these claims are genuine, but even if they are, the Tribunal is not satisfied that the harassment is so serious as to amount to ‘some serious punishment or penalty or some significant detriment or disadvantage’ which could be described as persecution”

    The RRT also did not accept that anybody would have been so interested in Ms Philips and her brother in early 1999 that they would have harassed their father about their whereabouts and then beaten him because he had failed to give them information sought.

34. The RRT noted the country information before it.  It accepted that Pakistan is an extremely violent society with a very high level of crime and political violence as well as sectarian violence, and serious ongoing human rights violations.  Indeed, it also accepted that there are serious sporadic incidents of communal violence which have targeted Christians.  However, it found that Ms Philips has never been subjected to anything more than low level harassment as a woman in Pakistan.  In any event, it found that this generalised violence and crime cannot be characterised as persecution for a Convention reason.

35. Furthermore, the RRT found that there has never been any restriction placed on Ms Philips’ family’s ability to practise their religion in Pakistan.

36. In summary, the RRT found that none of Ms Philips’ claims, either individually or cumulatively, considered in light of the independent evidence before it, caused Ms Philips to have a well-founded fear of persecution in Pakistan for a Convention reason, now or in the reasonably foreseeable future.

    Grounds of the present application for an order of review

37. In Ms Philips’ amended application for an order of review, she relies on the following grounds:

    “1.That procedures required to be observed by section 430 of the Act were not observed (s476(1)(a)), in that the Tribunal failed to make findings of fact on material points.

    Particulars

    1.1The Tribunal failed to say what it found had and hadn’t occurred in relation to the applicant’s claims of vandalism and acts of violence centred on the applicant’s family and family home

    1.2The Tribunal failed to say whether it accepted or rejected the evidence of Ms Rani Camm, in full, or in part.

    2.The decision involved an error of law (s476(1)(e)).

    Particulars

    2.1The Tribunal misapplied the law to the facts as it found them in holding that the persecution which the applicant had suffered ‘was not serious enough to amount to persecution’.

    2.2The Tribunal misinterpreted the applicable law in failing to consider whether it was wrong about the motive of those who assaulted the applicant, the applicant’s brother, and the applicant’s sister.”

    Outline of submissions on the present application for an order of review

1. Counsel for Ms Philips submits that the RRT was obliged by s 430 of the Act to state exactly what it did and did not accept in relation to the incidents surrounding the home invasion, and, furthermore, when it noted that a claim was “somewhat overstated”, to state what it was ultimately satisfied had in fact occurred. In response, counsel for the Minister submits that the RRT made numerous and specific findings in relation to each of Ms Philips’ claims which were more than sufficient to comply with s 430.

2. Ms Philips submits that the RRT erred because it failed to consider the cumulative effect of the treatment which she suffered.  The Minister, on the other hand, argues that the RRT did not accept that Ms Philips had been the subject of violence and so was not bound to consider the cumulative effect of the evidence.  In any event, according to his submission, the question as to whether the experiences of Ms Philips amounted to persecution was a question of fact and degree properly left to the RRT.

3. Finally, Ms Philips submits that the RRT erred in foreclosing reasonable speculation about the chances of persecution emerging from a consideration of the whole of the material, and wrongly failed to consider the ramifications of the RRT’s being wrong in coming to its factual conclusions.  The Minister contends in response that the presiding Member did consider the possibility of error in relation to some of its findings, and that its other findings were so unequivocal and emphatic that speculation against the possibility that they were incorrect was not called for.

   Reasoning on the present application for an order of review

   First ground of the application – failure to observe required procedures (s 476(1)(a))

4. In my respectful opinion, this ground is not made out.

5. In relation to the claims of vandalism and acts of violence centred on Ms Philips’ family and family home, in the “Findings and Reasons” section of its Reasons for Decision the RRT dealt with the alleged invasion of the family home at Gujranwala when Ms Philips was very young and found that the invasion was “nothing other than a random attack by hooligans on an unsuspecting family.” The RRT declared itself “not satisfied that it occurred for a Convention reason.” The RRT was, in any case not satisfied that there was

   “ anything other than a very remote chance that the incident will occur again in the reasonably foreseeable future causing [Ms Philips] to have a well-founded fear of persecution.”

6. The RRT also dealt with the allegation made by Ms Philips’ sister, Rani, of a threat following the memorial service for their father. The RRT rejected the claim that a caller would have been seeking out Ms Philips or her brother as it was not satisfied that they would have been of interest to anyone so long after they had left Pakistan.

7. The RRT referred to the claim that the father’s memorial service could not be held publicly and had to be held in the privacy of the family home for fear of persecution in the “Claims and Evidence” section of its Reasons for Decision. It did not return to this precise matter in the “Findings and Reasons” section. However, in another connection it expressed itself as not being satisfied that as at the time of the memorial service Ms Philips or her brother Rafiq was of continuing interest to local Muslims. I do not think it was incumbent on the RRT to address expressly the claim that the family had been forced to hold the memorial service within the confines of the home.

8. The RRT dealt with the claim of “vandalism”, that is, the problems with the drains, sewerage pipes and gas supply. It described these problems as having been “overstated” having regard to the fact that the family continued to live in the house for years after the problems started. The RRT was expressing its assessment of the degree of seriousness of the incidents.

9. The RRT is not obliged by s 430 of the Act to give reasons addressing every claim or allegation made by an applicant: Minister of Immigration and Multicultural Affairs v Singh [2000] FCA 845 at [46].

   Second ground of the application – error of law (s476(1)(e))

10. In my opinion the RRT did address Ms Philips’ claims as a whole.  It certainly stated that it did so. It said that it was “not satisfied that any of these claims, either individually or cumulatively, considered in light of all of the independent evidence before the Tribunal cause the applicant to have a well-founded fear of persecution in Pakistan for a Convention reason” (my emphasis) and in fact gave detailed consideration to Ms Philips’ claims, both in terms of describing them (15 pages) and dealing with them (12 pages).  The evaluation of those of Ms Philips’ claims it accepted was a matter for the RRT. There is no reason to think that the RRT did not consider Ms Philips’ claims as a whole.

11. It is a matter for the RRT to determine whether the harassment alleged rose to the level of “persecution” within the Convention definition of “refugee”. It was not in error in declaring itself not satisfied that it did. The RRT stated that it was “not satisfied that the applicant has ever been specifically targeted for any Convention reason for any sort of harm which [was] serious enough to amount to persecution”.  It considered the severity of the discrimination suffered by Ms Philips in relation to each claim, for example:

    “…this was simply a single act of harassment which is highly unlikely to ever be repeated again. While the Tribunal accepts that a single act of harm can amount to persecution, the Tribunal also needs to consider whether there is a real chance that the persecution will occur again in the future. In this case, the Tribunal is not satisfied that there is a real chance that this single isolated and bizarre incident would ever occur again in the future”;

    and,

    “The Tribunal finds that the problems which Rafiq experienced in his shop did not affect the applicant in a persecutory way. The applicant did not suffer ‘some serious punishment or penalty or some significant detriment or disadvantage’ as a result of this incident which could be characterised as persecution”

    I do not think that the standard invoked used by the RRT to determine whether the nature of Ms Philips’ experiences in these examples or elsewhere in its Reasons was persecutory, is shown to be legally assailable.

12. Finally, it is suggested by counsel for Ms Philips that the RRT erred by failing to entertain the possibility that it was wrong about the motives of those who assaulted Ms Philips. The conclusions of the RRT that Ms Philips’ own claims were not Convention based and as to the non-persecutory nature of her claimed experiences, made it unnecessary for it to go further by considering what the position would be if it was wrong about one or other of its findings of fact.

    Conclusion

13. For the above reason the application will be dismissed with costs.

I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:             18 July 2000

Counsel for the Applicant:	Mr C Jackson
Counsel for the Respondent:	Mr R Beech-Jones
Solicitor for the Respondent:	The Australian Government Solicitor
Date of Hearing:	7 July  2000
Date of Judgment:	18 July 2000