SZQSH v Minister for Immigration
[2012] FMCA 255
•20 April 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQSH & ORS v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 255 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicants claiming religious persecution in Pakistan – first applicant substantially disbelieved – whether the Tribunal misconstrued the relevance of the asserted risk of non state sponsored persecution considered - no jurisdictional error. |
| First Applicant: | SZQSH |
| Second Applicant: | SZQSI |
| Third Applicant: | SZQSJ |
| Fourth Applicant: | SZQSK |
| Fifth Applicant: | SZQSL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2238 of 2011 |
| Judgment of: | Driver FM |
| Hearing date: | 28 March 2012 |
| Delivered at: | Sydney |
| Delivered on: | 20 April 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Young |
| Solicitors for the Applicant: | Milestone Legal |
| Counsel for the Respondents: | Mr D Godwin |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
The application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2238 of 2011
| SZQSH |
First Applicant
SZQSI
Second Applicant
SZQSJ
Third Applicant
SZQSK
Fourth Applicant
SZQSL
Fifth Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 13 September 2011. The Tribunal affirmed decisions of a delegate of the Minister not to grant five of six named applicants’ protection visas. The relevant claims were made by the first applicant and references in this judgment to the applicant are references to him. The Tribunal found that it did not have jurisdiction in relation to a sixth named applicant who was not included in the original protection visa application and who was born after the decision of the delegate.
The following statement of background facts is derived from the submissions of the parties.
The applicants (other than the youngest child) arrived in Australia from Pakistan on 4 March 2010.
On 11 May 2010 the parents lodged an application for a protection visa.
The delegate refused their application on 10 September 2010.
The applicant parents sought review in the Tribunal on 30 September 2010.
The youngest child was born in Australia in October 2010. The Tribunal determined that it did not have jurisdiction in respect of this child as she had not been considered in the primary decision.[1]
[1] court book (“CB”) 242 [120]-[121]
The applicant husband is a Sunni Muslim. His wife is a Shia Muslim. He claimed his wife converted to Sunni in 2006. His wife’s family were aggrieved. He claims the wife’s family and members of Sipah-e-Mohammed who were related to his wife attacked him. He claims he fled to England but then returned when the wife’s family offered a reconciliation. He claims the wife’s family attacked his wife again in 2009 in the company of the police. He filed a petition but it was dismissed as a religious matter. He and his wife travelled to Australia in 2009 and again the wife’s family assured their safety if they returned to Pakistan. They returned to Pakistan, but he claimed the wife developed psychological issues and the doctor recommended they return to Australia.
Decision of the Tribunal
The Tribunal accepted that the applicant was a Sunni and that his wife was a Shia who later converted to be a Sunni.[2] The Tribunal also accepted that the marriage may have caused family resentment and hostility.[3]
[2] CB 243 [127]
[3] CB 244 [129]
The Tribunal accepted that the applicant may have been injured in an attack in September 2006, but did not accept the applicant's claim that the attack was perpetrated by members of Sipah-e-Mohammed.[4] The Tribunal did not accept that the attack was for reasons of religion.[5]
[4] CB 244-245 [131]-[139]
[5] CB 245 [139]
The Tribunal accepted that the applicant may have been threatened or harassed on the two occasions claimed by the applicant in April 2009, but found that these incidents did not arise for reasons of religion.[6]
[6] CB 246 [145] and 248 [156]
The Tribunal found that the husband's various returns to Pakistan after claiming to fear persecution from members of his wife's family and members of Sipah-e-Mohammed indicated that he did not genuinely fear harm.[7]
[7] CB 245 -248 [141]-[144]. [146], [150]-[151], [155], [157]
The Tribunal did not accept that the applicant, his wife and children had been threatened or mistreated for reasons of religion and did not accept that the applicant and his wife had been threatened or mistreated because of the wife's conversion to Sunni Islam, by either her relatives or members of Sipah-e-Mohammed[8]. The Tribunal therefore did not accept that the applicants had a genuine fear of persecution for reasons of religion.
[8] CB 248[158]
In relation to the applicants’ Sunni faith the Tribunal found that Sunnis were in the majority in Pakistan and there was no independent information that suggested that the Shias targeted Sunnis in Pakistan. Nor was there any support for the contention that a person who converted from Shia Islam to Sunni Islam would face State sponsored or community based persecution in Pakistan.[9]
[9] CB 248 at [159]
These proceedings began with a show cause application filed on 4 October 2011. The applicants continue to rely upon that application which contains two grounds:
1. The tribunal made jurisdictional error by constructively failing to exercise jurisdiction in relation to the issue of whether a person who had converted to sunni islam could face religious persecution at the hands of the (minority) shias.
2. The tribunal made jurisdictional error in relation to the nature and meaning of persecution at [159] of its decision requiring that persecution in relation religious conversation must be either;
(a) State Sponsored; or
(b) Community based.
Only the second ground in the application was pressed.
I received as evidence the court book filed on 4 November 2011.
The applicant contends that the Tribunal fell into error in two respects: first, by confining the relevance of non state sponsored persecution in Pakistan in the instant case to “community based” persecution and secondly, thereby limiting its forward looking assessment of the risk of persecution faced by the applicants.
The Minister contends that “community based” persecution is simply another way of saying persecution by non state actors. The Minister relies upon the decision of the High Court in SZBYR v Minister for Immigration [2007] HCA 26; (2007) 235 ALR 609 at [25] where the plurality observed:
In truth, any absurdity arose only from the appellants' artificial construction of the Tribunal's reasons. The following words of Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang are relevant here:
"[T]he reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision."
Consideration
The first applicant did not claim to fear harm from the Pakistani state. He claimed to fear harm from his wife’s family and a radical Shi’ite organisation called Sipah-e-Mohammed because of his wife’s conversion to the Sunni Muslim faith and his own refusal to convert to the Shia Muslim faith. There is no doubt that the Tribunal considered both of those claims in its reasons.[10]
[10] CB 244-248
The issue between the parties arises in relation to the Tribunal’s forward looking assessment at [159] of its reasons[11]. There, the Tribunal said:
I have considered the situation for the applicants if they return to Pakistan. As they are Sunni Muslims I do not accept that they are at any risk of a Convention based religious persecution if they return to Pakistan. Sunni Muslims constitute a majority in Pakistan and whilst there is country information indicating sectarian conflict between Sunnis and Shias in some locations the information indicates that the Shia minority are usually the victims of such conflict and that police and state authorities have been criticised for protecting the Sunni participants in such conflicts and not providing adequate protection to the Shias. There is no information suggesting that Sunni Muslims are targeted for harm by Shias for reasons only of their religious beliefs. I have considered the claim made by the applicants that they face harm because the applicant wife was a Shia who changed to Sunni Islam after her marriage. There is no country information before me and I do not accept that a person who has converted to become a Sunni would face either state sponsored or community based persecution in Pakistan for reasons of conversion.
[11] CB 248
In my view, the Tribunal was not, in using the expression “community based” persecution, considering a future risk of harm on a narrower basis than that alleged by the applicants in support of their visa application. In my view, as submitted by the Minister, read in the context of the Tribunal’s reasons as a whole, the reference to “community based” persecution was simply a reference to persecution at the hands of non state actors, including (but not limited to) members of the second applicant’s family and the Sipah-e-Mohammed organisation.
It follows that the applicants have failed to establish a case of jurisdictional error by the Tribunal and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 20 April 2012
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