SZQHW v Minister for Immigration
[2012] FMCA 56
•16 February 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQHW & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 56 |
| MIGRATION – Application to review decision of the Refugee Review Tribunal – whether Tribunal erred in construction and application of the law – whether Tribunal bound to consider whether applicant had a well-founded fear of persecution in the future despite finding about absence of past harm. |
| Migration Act 1958 (Cth), ss.36, 414 |
| Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR 1142; [2005] HCA 29 Chan Yee Kin v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; [1989] HCA 62 Minister for Immigration and Ethnic Affairs v Guo and Another (1997) 191 CLR 559; [1997] HCA 22 Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287; [1999] FCA 247 SZNDJ & Anor v Minister for Immigration & Anor [2010] FMCA 139 VAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 59 |
| First Applicant: | SZQHW |
| Second Applicant: | SZQHX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1150 of 2011 |
| Judgment of: | Barnes FM |
| Hearing date: | 22 November 2011 |
| Delivered at: | Sydney |
| Delivered on: | 16 February 2012 |
REPRESENTATION
| Counsel for the Applicants: | Mr L Karp |
| Solicitors for the Applicants: | Success Lawyers and Barristers |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1150 of 2011
| SZQHW |
First Applicant
| SZQHX |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Refugee Review Tribunal dated 23 May 2011. The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicants protection visas.
The applicants, a daughter and her mother, are citizens of Pakistan who arrived in Australia in August 2010 and applied for protection in September 2010. Only the daughter (who is referred to for convenience as the applicant) made refugee claims.
The applicant claimed to have a well-founded fear of persecution in Pakistan by reason of her political activism and, in particular, her efforts to establish and protect women’s rights against extremist groups. She claimed that she lived in Peshawar and worked as a teacher from 2004 to February 2009. From March 2009 until January 2010 she worked as a co-ordinator and activist in charge of women’s welfare in general for the Prosperity Welfare Organisation (the PWO), a non-government organisation.
The applicant claimed that the Taliban movement “issued notification to quit [their] jobs” to her and other female workers with the PWO as the nature of their work was contrary to Islamic values. Their parents were told they were working for “the infidels” and instructed not to allow them to go to work. She claimed that as a result of this intimidation and gender discrimination she and her female University friends founded a forum to protect women’s rights through a link with government agencies, but that she later realised the government was helping the Taliban in human rights and religious matters.
The applicant claimed that while she and others continued working for the PWO they were threatened on an individual basis. A Taliban man warned her that if they continued to go against Taliban laws they would be punished and also that if she did not dress properly he would throw acid at her.
She claimed that they published articles about women’s rights but subsequently her friends deserted her as a result of such warnings.
The applicant claimed that in 2009, at a function organised by the National Awami party (of which her relative was a leading local member) she addressed the audience about women’s rights under Islam and criticised the Taliban’s approach. She also urged women in villages around Peshawar to resist the Taliban.
She claimed that in August 2009 she was abducted by the Taliban and detained for five hours after she went to her village (in an area where the Taliban had destroyed many girls’ schools) to make a speech to a group of women about their human rights. She claimed that she was warned to cease her activities. She was released after the intervention of her family on the basis that she would not encourage other Muslim women to fight for human rights.
The applicant claimed that after an article was published in a Pashto language newspaper circulated in Afghanistan and the tribal areas of Pakistan in November 2009 which expressed views similar to those she was expressing, a fatwa was issued against her and that she went into hiding.
In March 2010 she returned to live in her home in Peshawar. The applicant claimed that in March 2010 her father’s car was fired upon by persons whom she believed were Taliban militants. She believed that they were targeting her. She claimed that the police took a report but did not investigate and that thereafter her uncle, through connections, made arrangements for her to obtain a visa to come to Australia.
In the course of a Departmental interview the applicant elaborated on the role of the PWO and her activities as co-ordinator, she claimed she travelled to various tribal areas near Peshawar, Pakistan with doctors who administered medications and vaccinations (to which the government did not object). She claimed that she had been abducted by the Taliban while walking to her car, not while addressing women in her village.
The application was refused and the applicant sought review by the Tribunal. The applicant’s migration agent provided a written submission to the Tribunal about the situation in Pakistan. It was submitted that the applicant, as the coordinator of a women’s NGO, faced a life-threatening situation.
The applicant attended a Tribunal hearing at which she elaborated on her claims and, according to the Tribunal account of the hearing, responded to issues raised with her by the Tribunal. Her evidence to the Tribunal included a claim that the PWO had closed in early 2010.
The Tribunal decision
In its findings and reasons the Tribunal accepted that the applicant had been involved in campaigning for the Awami National League in the 2008 election at which a relative stood unsuccessfully, that she worked for the PWO in Peshawar from March 2009 until she resigned in January 2010 and that this organisation carried out vaccinations in tribal areas and educated women about their basic rights.
However the Tribunal stated that it had difficulty accepting that the applicant was telling the truth about the problems she claimed to have been facing in Pakistan. The Tribunal did not accept that the applicant was targeted by the Taliban as claimed because of her profile as a worker for an NGO and a women’s rights activist.
The Tribunal had regard to the fact that while the applicant claimed the Taliban sent warning letters to her home in July 2009 and warned her in person in June 2009 to stop working for the NGO, she also claimed that she did not take these threats seriously and that she continued to work for the NGO. Further despite her claim about being abducted and warned to cease her activities in August 2009, she continued her field work for the NGO in the tribal areas (although did not return to her own village).
The Tribunal addressed the applicant’s claim that a fatwa was issued against her by those at her home village mosque in November 2009, that she went into hiding but remained in Peshawar and that she returned to live at her home in Peshawar in March 2010 because her father had returned to Pakistan from Australia. The Tribunal found that it was not clear why her father’s return would have assisted the applicant if there had been a fatwa against her as claimed.
The Tribunal also found it difficult to accept that the persons who shot at the applicant’s car in March 2010 were targeting her, having regard to the fact that even if the Taliban saw her leaving her home they would not have known that they should lie in wait at a particular place to attack her.
In addition, the Tribunal did not accept the applicant’s explanation for why she did not leave Pakistan until August 2010. She had claimed it took time for her brother to apply for her Australian visa and that getting money to pay an agent to ensure she could leave Pakistan without facing problems from the police, intelligence services or other government agency was a problem. The Tribunal did not accept the applicant’s evidence in this respect, having regard to the fact that she did not claim she had ever faced problems from the authorities and that she had a police clearance certificate issued on 30 July 2010. The Tribunal did not accept on the evidence before it that the applicant would have felt the need to pay an agent to ensure her safe passage through the airport, that she had ever been of interest to the Pakistani authorities, that she had paid an agent to ensure that she would be able to leave safely, or that there was a real chance she would be persecuted by the police, the intelligence services or any other government agency if she returned to Pakistan now or in the reasonably foreseeable future.
In relation to the applicant’s claim that if she returned to Pakistan she would be killed by the Taliban, the Tribunal accepted that the Taliban were capable of carrying out terrorist atrocities throughout Pakistan. However it did not accept the suggestion that the applicant’s situation was in anyway comparable to that of public figures such as Benazir Bhutto and Salman Taseer, who had been assassinated. The Tribunal accepted that if the Taliban had wanted to harm the applicant because of her work for an NGO or as an activist for women’s rights they could have done so, having regard to the applicant’s claims that she continued her field work for the organisation despite warnings in June, July and August and that she did not go into hiding until after a fatwa was said to have been issued against her in November 2009.
The Tribunal continued:
[86] As I put to the applicant, it is clear that the Taliban had ample opportunity to harm her if they wished to do so. I do not accept on the evidence before me that the applicant’s activities ever attracted the attention of the Taliban. I do not accept that she was warned in June or July 2009, nor that she was abducted in August 2009 and given a further and final warning. I do not accept that a fatwa was issued against her in November 2009 as a result of the publication of an article in a Pashto language newspaper. I do not accept that the applicant went into hiding nor that the Taliban were responsible for the incident in which shots were fired at the car in which she and her parents were travelling in March 2010.
[87] I accept that if the applicant returns to her home in Peshawar now or in the reasonably foreseeable future she will continue to be involved in the same activities in which she has been involved in in the past. However I do not accept on the evidence before me that there is a real chance that she will be persecuted by the Taliban or by Islamic extremists because of her work for a non-government organisation, her activism for women’s rights or her involvement as a member of the Awami National Party if she returns to her home in Peshawar now or in the reasonably foreseeable future. Having regard to the findings of fact I have made above - and in particular my rejection of the applicant’s claims about the threats she faced from the Taliban and the fatwa supposedly issued against her – I do not accept on the evidence before me that there is a real chance that the applicant will be persecuted for reasons of her real or imputed political activism or her membership of any ‘particular social group’ in Pakistan because of her work for a non-government organisation, her activism for women’s rights or her involvement as a member of the Awami National Party if she returns to her home in Peshawar now or in the reasonably foreseeable future.
The Tribunal also addressed the applicant’s claim that she feared the possibility of future abduction and murder if she returned to Pakistan because the State failed to protect women. The Tribunal had regard to evidence that referred to the level of violence against women in Pakistan, but also to the fact that the applicant did not claim to have been a victim of such violence in the past, had obtained an education including undergraduate and postgraduate degrees and had attended classes for a further MBA in Peshawar from 2008 and in her work for the NGO had undertaken field work in the tribal areas. The Tribunal did not consider that the applicant’s own actions suggested that she genuinely feared being persecuted as a woman in Pakistan. It did not accept on the evidence before it that there was a real chance that the applicant would be persecuted for reasons of her membership of the particular social group of women in Pakistan if she returned to her home in Peshawar now or in the reasonably foreseeable future.
The Tribunal did not accept that either the applicant or her mother had a well-founded fear of being persecuted for a Convention reason. Hence it was not satisfied that either of the applicants satisfied the criterion for a protection visa as a member of the family unit of such a person within s.36(2) of the Migration Act 1958 (Cth). It affirmed the decision not to grant the applicants protection visas.
Grounds of Review
The applicants sought review by application filled in this court on 7 June 2011. There is one ground in the application. It is as follows:
The Tribunal erred in failing to lawfully construe and apply the words, “a well founded fear of persecution” in Article 1A(2) of the Convention Relating to the Status of Refugees, 1951.
Particulars
(a) The Tribunal found that because the first applicant had not been harmed by fundamentalist Islamists for reason of her activities for and on behalf of a non government organisation promoting women’s rights in Pakistan in the past, she would not be harmed in the future.
(b) The Tribunal had before it information to the effect that fundamentalist Islamists did target people working for women’s rights.
(c) The Tribunal also found that the first applicant would continue to promote womon’s (sic) rights were she to return to Pakistan.
(d) In the circumstances of this case the Tribunal was obliged to consider whether the first applicant had a well founded fear of persecution in the future notwithstanding her not having been harmed in the past.
Submissions
Uncontentiously, the applicants submitted that whether there was a real chance of the first applicant facing Convention-related harm in Pakistan in the reasonably foreseeable future had to be determined by the Tribunal on the basis of the evidence and other material before it as part of the Tribunal’s function of reviewing the delegate’s decision pursuant to s.414 of the Migration Act (see for example Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287; [1999] FCA 247 at [18] – [19]). Counsel for the applicants acknowledged that in so doing it was entirely proper for the Tribunal to make findings as to what had happened in the past (see Minister for Immigration and Ethnic Affairs v Guo and Another (1997) 191 CLR 559 at 574 – 5; [1997] HCA 22). Both the Tribunal and the applicants’ counsel referred to whether there was a “real chance” of persecution as considered in Chan Yee Kin v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; [1989] HCA 62 in “clarification” of the phrase “well-founded” as considered in Guo at 572 – 573.
What is in issue is whether the Tribunal erred in the construction and application of the concept of a “well-founded fear of persecution”. Counsel for the applicant pointed out that as the High Court observed in Guo, the past is not an absolute guide to the future and that as the majority of the court had stated at 574 – 5:
The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability - high or low - of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.
The applicants submitted that it would be an error to treat the past as an invariable guide to the future and that this was what the Tribunal had done in this case, in particular in paragraph [87] of the reasons of decision set out at [21] above. It was submitted that an assessment the concept of “well-founded fear of persecution” required consideration of whether and to what extent the future would reflect the past and that while such a question would not arise in those cases in which a person’s claims were entirely discredited (because there would then be no basis for any feared persecution) in a case such as this, where the applicant’s past political activities were accepted, such an issue did arise for determination.
The Tribunal accepted that the first applicant worked for the PWO for 10 months in 2009 to January 2010 and that she would continue to be involved in such activities in the future, notwithstanding that it found that she had not been persecuted in the past. It was submitted that the Tribunal’s reasoning in that respect appeared not to have been that the Taliban were not opposed to NGOs and especially those that promoted women’s rights (which, it was submitted, would have been contrary to country information before it), but rather that the applicant’s activities had not “attracted the attention of the Taliban”. It was contended that this conclusion was somewhat ambiguous, in that it could mean either that the Taliban, although aware of the applicant’s activities were not interested in taking action against her, or that the Taliban did not know of the applicant’s activities. The latter possibility was said to be the natural and preferable meaning of the Tribunal’s finding but, in any event it was submitted that the Tribunal had erred on either construction. The Tribunal was said to have reasoned directly from the finding of the absence of past persecution to a finding about the future and failed to consider whether the future would conform with the past.
Counsel for the applicant submitted that if the Tribunal was of the view that the Taliban did not know of the applicant’s activities, it was nonetheless necessary for it to consider the chances of them coming to know in the future, particularly having regard to the fact that the applicant had been involved in activities with the NGO for a relatively short time, the country information before the Tribunal that the Taliban were known to be antagonistic to the concept of women’s rights and those who espoused them and also the evidence of NGO workers being targeted. In these circumstances it was submitted that there was a need for the Tribunal to consider whether the applicant’s activities in the future would attract the attention of the Taliban and their retribution.
In the alternative it was submitted that even if the Tribunal was of the view that the Taliban was aware of the applicant’s past activities but was not interested in harming her, the Tribunal had not disputed the applicant’s evidence that the PWO had closed, so that the applicant would have to continue any such activities with another, possibly less benign, organisation. On this basis it was said that there was evidence by which the Tribunal could have found that the future might not reflect the past and that it was in error in failing to consider such a possibility.
The applicants submitted that while the Tribunal did not accept on the evidence before it that the first applicant’s activities had ever attracted the attention of the Taliban, the evidence before it, including the independent country information, indicated that the activities of the applicant were not benign so far as the Taliban was concerned and that the Taliban had persecuted people carrying out such work in the past.
It was contended that in circumstances where the applicant had only been doing this work for a short time and the NGO that she was involved in had closed (so that if she was to continue such activities in the future she would either have to do so by herself or with another organisation), the question of whether the future would reflect the past arose for consideration by the Tribunal. While it was acknowledged that the Tribunal dealt with the applicant’s submission in relation to the assassination of prominent persons in Pakistan, reliance was placed on the fact that there was evidence before the Tribunal that the Taliban was antagonistic to NGOs in general and in particular to NGOs that dealt with women’s rights.
The first respondent submitted that the ground relied on by the applicants was premised on a reading of the Tribunal’s decision record “minutely and finely with an eye keenly attuned to the perception of error”, contrary to what was stated at [30] in Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259; [1996] HCA 6 and that a plain reading of the Tribunal’s decision did not reveal any failure to correctly identify and apply relevant legal principles. It was submitted that the Tribunal properly considered whether the first applicant would face a well-founded fear of harm if she returned to Pakistan now or in the reasonably foreseeable future and that it was apparent that it understood that the question of whether a person was owed protection obligations was to be answered by having regard to what would happen in the reasonably foreseeable future if the applicant were to return to her country of origin and also the test that it was required to apply in terms of assessing whether the applicant’s fear was well-founded.
Reference was made to the fact that the Tribunal had correctly set out the test to be applied, referred to the material before it, including submissions from the applicant and her adviser and independent country information, (including reports and articles in relation to terrorist incidents in Pakistan). In addition, in the context of considering the applicant’s claimed fear of future harm, the Tribunal had explicitly accepted that the Taliban were capable of carrying out terrorist atrocities. It was submitted that the Tribunal did not fail to address the issue of the future in the manner contended for by the applicants. In particular, the Tribunal had regard not only to its rejection of the applicant’s claims about threats and past action against her from the Taliban, but also to all of its findings of fact, including that it did not accept that the applicant was telling the truth about the problems she claimed to have had in Pakistan or that her situation was comparable to public figures who were assassinated. In effect the Tribunal was said to have rejected any suggestion that the applicant’s profile was sufficient to attract the terrorist atrocities of the Taliban.
The first respondent submitted that the Tribunal was entitled to have regard to the absence of any past persecution in concluding that the applicant did not fear a well-founded fear of persecution now or in the reasonably foreseeable future (see Chan Yee Kin v The Minister for Immigration and Ethnic Affairs and Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR 1142 at 1143; [2005] HCA 29 per Gleeson CJ). It was pointed out that as the majority of the High Court had stated in Guo at 575:
In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.
It was also said to be relevant that in the current case there was no evidence of a substantial change in relevant conditions such that the past could be said to be a less reliable indicator of the future (See VAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 59 at [16]) and that the Tribunal did not accept that the first applicant was a credible witness in all respects. Reference was made to the remarks of this court, in what was said to be an analogous case of SZNDJ & Anor v Minister for Immigration & Anor [2010] FMCA 139 at [29], that:
Insofar as it is contended that the Tribunal had to analyse the future harm the applicant may face, in circumstances in which the Tribunal did not accept the credibility of any of the applicant’s claims about past harm which he claimed gave rise to a well-founded fear of persecution, it was not necessary for it to go on to analyse in any more detail than it did the possibility of future harm.
Resolution
First, as the solicitor for the first respondent acknowledged, SZNDJ is not in fact on all fours with the present case. In that case the Tribunal did not accept that the applicant was in any respect a credible witness. In this case, while the Tribunal rejected the applicant’s claims that she was targeted by the Taliban because of her profile as a worker for an NGO and a women’s rights activist, it did accept her claims about working for the NGO.
Counsel for the applicants suggested that in the extract from Guo relied upon in relation to whether past events are a guide to the future (at 574-5 and [20] above), the context indicated that in the last sentence their honours “meant” to say “but unless a person or tribunal attempts to determine what is likely to occur in the” past (not “what is likely to occur in the future”). However there is no basis for such a contention. (in the context of considering the extent to which past events are a guide to the future) the High Court referred to the need for “an attempt to determine what is likely to occur in the future in relation to a relevant field of inquiry” for there to be a “rational basis for determining the chance of an event in that field occurring in the future”.
I have borne in mind that the fact that the Tribunal set out the applicable law early in its decision would not of itself suffice to demonstrate that it applied that law. As Kirby J observed in Guo at 595 it “is the reality, and not the appearances, which matters” and that:
…the judge, reviewing the decision which is impugned, must look beyond the inclusion in the reasons of the decision-maker of the relevant statutory provisions, the citation of relevant authority or the assertion that these have been taken into account. The judge must assess whether a real, as distinct from a purported, exercise of the power has occurred. Where it has not, there is a constructive failure to exercise jurisdiction which will constitute an error of law authorising the provision of relief.
However in this case it has not been established that the Tribunal fell into error in the manner contended for by the applicants.
The Tribunal did not simply find that because the first applicant had not been harmed by fundamentalist Islamists for reasons of her activities for and on behalf of an NGO promoting women’s rights in the past, she would not be harmed in the future as contended in the particulars to the ground of review. Rather, the Tribunal accepted that the first applicant would continue to be involved in the same activities as in the past, which it explained consisted of work for an NGO, as well as activism for women’s rights and involvement as a member of the Awami National Party. However it rejected her claims about having received threats from the Taliban on three occasions in 2009 (including an abduction and final warning in August 2009), that a fatwa was issued against her in November 2009, that she went into hiding or that the Taliban were responsible for an incident in which shots were fired at the car in which she and her parents were travelling in March 2010.
Importantly, the Tribunal made these findings in the context of accepting that if the Taliban had wanted to harm the applicant for her work for an NGO or as an activist for women’s rights “they could have done so” and found that it was clear that the Taliban had “ample opportunity” to harm the first applicant “if they wished to do so”. Such findings implicitly accept the applicant’s claim that the Taliban was aware of her activities.
In any event, as the first respondent contended, the Tribunal properly went on to consider whether the first applicant had a well-founded fear of persecution, notwithstanding the fact that she had not been harmed in the past. In that context it was, as the High Court stated in Guo at 575, “an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events”.
The analysis of the chance of future harm has to be considered in the context of the Tribunal findings (see Guo at 574). Here, as in Guo, the Tribunal made findings about past events. It rejected the applicant’s claims about receiving past warnings from the Taliban and being the subject of a fatwa. It found that she did not have a profile comparable to that of particular prominent persons who had been harmed. It also concluded that she had not suffered past harm as claimed. The Tribunal then used these findings as the basis for its conclusion that there was no real chance of persecution in the future, notwithstanding that it accepted that the applicant would continue to be involved in the same activities in which she had been involved in the past.
In other words, having found that the applicant did not experience any past attention from the Taliban because of her work for the NGO or for any other activity, the Tribunal also considered but rejected her claim that she had a profile that put her at risk. It also considered, but rejected, her broader claims about a fear of harm by other Islamic extremists or by any government agency. It was open to the Tribunal to have regard to its findings that the claimed past harm had not occurred to the applicant for reason of her work for an NGO, her activism for women’s rights or her involvement in the Awami National Party in considering whether there was a real chance that future harm would occur were she to engage in such activities in the future. The Tribunal findings which accepted that the applicant would continue to be involved in the same activities in which she had been involved in the past (including work for an NGO) sufficiently addressed the prospect of the applicant working for another NGO involved in women’s rights in such a manner.
As no jurisdictional error has been established the application must be dismissed.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Barnes FM
Date: 16 February 2012
0
10
1