SZTMQ v Minister for Immigration and Anor
[2015] FCCA 381
•24 February 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTMQ v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 381 |
| Catchwords: ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal misapplied the complementary protection test under the Migration Act 1958. |
| Legislation: Migration Act 1958, ss.36, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Minister for Immigration & Citizenship v MZYYL (2012) 207 FCR 211 SZSHK v Minister for Immigration & Border Protection (2013) 138 ALD 26 SZSXE v Minister for Immigration & Border Protection [2014] FCA 867 |
| Applicant: | SZTMQ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2754 of 2013 |
| Judgment of: | Judge Cameron |
| Hearing date: | 16 February 2015 |
| Date of Last Submission: | 16 February 2015 |
| Delivered at: | Sydney |
| Delivered on: | 24 February 2015 |
REPRESENTATION
| Solicitors for the Applicant: | Mr M. Jones of Parish Patience |
| Solicitors for the Respondents: | Ms K. Hooper of DLA Piper Australia |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2754 of 2013
| SZTMQ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Pakistan who arrived on Christmas Island by boat on 9 August 2012. On 2 November 2012 he lodged an application for a protection visa with what is now the Department of Immigration and Border Protection, alleging that he feared persecution in Pakistan because of his adherence to Shia Islam. On 25 March 2013 the applicant’s application was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa were set out in the Tribunal’s decision. Relevant factual allegations are summarised below.
In a statutory declaration attached to his protection visa application, the applicant relevantly alleged:
a)he was a Shia of Bangash ethnicity;
b)in 2010, while he was at college in Rawalpindi, he met and became friends with a person whom he identified. In 2010 that person texted him stating “I will kill you”. Approximately two days later the applicant received another text message with the same message. He then called the friend but he did not answer. About a week later the applicant received a further message which repeated the threat, insulted his religion and was signed off with “Taliban” and a Kalashnikov logo. When shown the text messages his father told him that there was no point informing the police;
c)on 14 March 2011 he went to Peshawar for his sister’s wedding and stayed at a hotel. On the following day he was at Peshawar markets when he saw his former friend who had sent the threatening texts. That person was with four men, two in a car and two others on a motorbike. He ran back to his hotel after the men started to walk towards him but was not followed inside because the owner of the hotel was a Shia;
d)he went straightaway to his home in Parachinar and stayed in his village for a month because he was frightened after the incident in Peshawar; and
e)he then went to Islamabad to study but kept receiving threatening messages from different numbers.
The applicant attended an interview with the delegate on 8 January 2013 and relevantly made the following additional claims:
a)the person who had sent the texts had been a school friend who threatened to kill the applicant when he found out that he was Shia. He had not seen or had any contact with that person since he saw him at the Peshawar market in April 2011;
b)he had received threatening messages once a week or once a fortnight, the first being in January or February 2011 and the last in December 2011 when he decided to leave Pakistan. He had never received any threatening telephone calls and had never been threatened in person in Rawalpindi;
c)he did not change his telephone number as it was the only number his family knew for him;
d)the people threatening him had not known where he was because he changed the times of his classes in Rawalpindi and had been “living like a prisoner”. He would have been killed if they had known where he was; and
e)he would be unable to relocate in Pakistan as Shias were targeted wherever they went and could be kidnapped.
The applicant’s advisers provided to the Tribunal a written submission dated 20 June 2013. In that submission, the applicant’s advisers relevantly claimed:
a)the applicant had been able to live safely in college due to the security provided by the college and he had been able to work as no one knew where he worked and he took differing routes;
b)he had visited his family in Parachinar before leaving Pakistan;
c)he was at risk throughout Pakistan from the Taliban and relocation was not viable; and
d)the Tribunal could not be “comfortably satisfied” that the applicant would be provided state protection.
The applicant attended a Tribunal hearing on 27 June 2013 and relevantly made the following additional claims:
a)he feared being killed in Pakistan because of his Shia beliefs;
b)he received the first threatening text message in 2011 and the incident at the market was on 15 March 2011. He departed Pakistan in April 2012;
c)there were always bomb blasts and fighting in Parachinar and he could be killed at any time. There had been bomb blasts in 2008 and February 2012;
d)his former friend was a Sunni and had been in two of his college courses in Rawalpindi. It was only after meeting his former friend’s friends that the former friend realised that the applicant was a Shia;
e)he started to receive the threatening messages a few days after meeting his former friend’s friends. He had received five messages from his former friend and then received “sometimes 1 or 2 a week” from random numbers. All but one of the messages were received while he was in Rawalpindi;
f)he had not been aware of any of his friends experiencing any problems in Rawalpindi but “everyone” was scared and could not go out safely. He had not told his friends about the threatening text messages;
g)he had no other concerns in Pakistan apart from being Shia and the threatening text messages. He had no concerns about being from the Bangash tribe; and
h)he had known of students and people in Shia mosques who had been harmed and had known people who had been targeted and killed while travelling in a government convoy. He had heard of people being kidnapped and shot in Rawalpindi.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”) or s.36(2)(aa) of the Act. The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal did not accept that the applicant had received any threatening text messages or that his former friend or anyone else had sought to harm him at any time. It found that in order to enhance his claim for a protection visa the applicant had fabricated his claims that the Taliban, his former friend and the latter’s friends were adversely interested in him. It found that the applicant was not a credible witness;
b)while it was prepared to accept that the applicant was Shia from the Bangash tribe, it did not accept that he feared any harm on account of being Bangash. It did not accept that the applicant’s family would not have informed him if there had been any specific problems or issues in Parachinar. Further, while the Tribunal accepted that Parachinar had been the location of attacks over the years by the Taliban and other extremists, it observed that the attacks were random and had harmed both Shia and Sunnis. It found that the area had been under the protection of Bangash and Turi tribes’ militia for some years and that, at the time of the review, was protected by the Pakistani National Army;
c)it did not accept that the applicant had a profile which would cause him to be targeted for harm by the Taliban or similar groups and found that he could return to live with his family in Parachinar; and
d)it did not accept that the state protection offered was inadequate, finding that the protection afforded by the Pakistani state was of a reasonable level.
Proceedings in this Court
In his amended application the applicant alleged:
1.The Tribunal applied a wrong test to determine whether the Applicant could obtain protection from an authority of his country of nationality.
Particulars
The Tribunal found that the protection afforded by the Pakistani state was “of a reasonable level of protection”. The test it should have applied pursuant to 36(2B)(b) was whether he could obtain, from an authority of the country, protection such that there would not be a real risk that he would suffer significant harm.
2. The Tribunal erred by failing to correctly consider whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to a receiving country, there was a real risk that he would suffer significant harm.
Particulars
The Tribunal failed to consider as part of its inquiry into s.36(2)(aa) whether the Applicant could obtain, from an authority of the country, protection such that there would not be a real risk that he would suffer significant harm.
Relevant legislation
Section 36 of the Act relevantly provides:
36 Protection visas
...
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
(aa)a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
…
(2A) A non-citizen will suffer significant harm if:
(a)the non-citizen will be arbitrarily deprived of his or her life; or
(b)the death penalty will be carried out on the non-citizen; or
(c)the non-citizen will be subjected to torture; or
(d)the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)the non-citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or
(b)the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or
(c)the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.
Consideration
Ground 1
Submissions
After rejecting the applicant’s allegations that he had a well-founded fear of persecution for a Convention reason, the Tribunal said:
The applicant’s agent has made a submission that state protection is in effect inadequate: I do not accept that this is so. …. I find that the protection afforded by the Pakistani state is of a reasonable level of protection, I find that State protection is afforded to the people (whether Sunni or Shia or of whatever tribe) of the Kurram Agency against various insurgents such as Taliban and their supporters.
The applicant observed that that passage was not addressed to his claims to fear Convention-related persecution. He submitted that, in that circumstance, the passage was to be understood to have been referring to his complementary protection claims, notwithstanding that the consideration of those claims appeared later in the Tribunal’s reasons. He argued that if the Tribunal had been stating in that passage that he did not face a risk of significant harm because he had access to adequate state protection, it had applied the wrong test because it had referred to protection being of a reasonable level rather than the test as set out in s.36(2B)(b).
Discussion
I agree that if the Tribunal had been expressing a conclusion that the applicant did not face a real risk of significant harm in Pakistan because state protection “of a reasonable level” was available then its conclusion would have been based on an incorrect test. However, that was not what the Tribunal did. I find that the Tribunal’s comments quoted above at [12] concerned the ability of the state of Pakistan to protect the applicant from Convention-related harm, not its ability to protect him from serious harm.
In broad terms, the Tribunal’s reasoning was divided into two parts. In the first, paras.29-33, it considered whether the applicant had a well-founded fear of persecution in Pakistan for a Convention reason and in the second, paras.34-37, it considered whether the applicant faced a real risk of significant harm if returned to Pakistan.
The structure of the Tribunal’s reasoning indicates that its comments concerning state protection were made only in the context of the applicant’s Convention-related claims in that they are found in para.31 of its reasons and are preceded and followed by passages concerned solely with the applicant’s Convention-related claims. This echoes the fact that the applicant’s written submissions on the subject of state protection concerned protection from Convention-related harm, not serious harm.
Moreover, the Tribunal’s comments on state protection were made in terms which were properly applicable only to Convention-related claims. Given its expertise, I do not accept that if the Tribunal had intended to express a view concerning state protection in connection with the applicant’s complementary protection claims that it would have failed to refer to the terms or the substance of s.36(2B)(b). The inference that this was not an oversight or error is strengthened by the fact that the comments were made in that part of the Tribunal’s reasons concerned with the applicant’s Convention-related claims. It seems unlikely that the Tribunal would have interposed into its consideration of the applicant’s Convention-related claims a discussion of state protection from serious harm while employing a test applicable to Convention-related harm rather than the test found in s.36(2B)(b).
For these reasons, I find that the first ground of the amended application is not made out.
Ground 2
Submissions
The applicant’s second allegation was that if the passage quoted above at [12] did only concern state protection in the Convention context then, as s.36(2B)(b) had not been discussed in that part of the Tribunal’s reasons concerned with complementary protection, the Tribunal had not applied the complementary protection criteria correctly because it had not considered s.36(2B)(b) anywhere in its reasoning.
The applicant referred in this regard to Minister for Immigration & Citizenship v MZYYL (2012) 207 FCR 211 where it was held that s.36 requires the Minister to consider the complementary protection criteria as a whole. In that case the Full Court of the Federal Court held that it is incorrect to consider, as a preliminary question, whether an applicant faces a real risk of significant harm if removed to “a receiving country” and only then consider whether the availability of state protection reduces that risk to something less than a real one. Their Honours said:
The section must be read as a whole. The enquiry provided for in s 36(2)(aa) necessarily involves consideration of the matters referred to in s 36(2B). The Minister does not undertake the enquiry in s 36(2)(aa) and then move to s 36(2B). (at 218 [36])
Discussion
Although the applicant did not suggest that the Tribunal should have applied the two step process discountenanced in MZYYL, he did argue that the effect of MZYYL was that the Tribunal had to consider s.36(2B)(b) to fully discharge its review obligations.
However, the facts of the two cases are different and so the ratio of MZYYL should be approached with those differences kept in mind.
Unlike the present applicant, who sought protection by reference to both the Convention and the Act’s complementary protection provisions, MZYYL had sought protection only under the Act’s complementary protection provisions. Consequently, the Tribunal was not lawfully able to consider MZYYL’s review application other than in the manner identified by the Full Court. Specifically, because there were no Convention-related claims the Tribunal did not, as a preliminary step, make findings of fact in the context of the Convention test and then move to consider complementary protection – as occurs in many of the Tribunal’s decisions including the decision the subject of this proceeding. There is no error in the Tribunal making findings of fact in the context of Convention-related claims and then applying the complementary protection test to the facts as found: SZSHK v Minister for Immigration & Border Protection (2013) 138 ALD 26 at 34-35 [32]-[35]; SZSXE v Minister for Immigration & Border Protection [2014] FCA 867 at [56].
When it comes to applying the complementary protection test, it should be recognised that s.36(2B) does no more than provide a non-exhaustive list of potential bases for concluding that an applicant does not face a real risk of significant harm in a third country. It is not a mandatory test to which reference must be made in all cases. Consideration of the section as a whole does not require consideration of provisions which are, or because of fact finding have become, irrelevant to the decision. For instance, no error is disclosed by the fact that the Tribunal did not consider whether the applicant could relocate within Pakistan (s.36(2B)(a)) or whether the risk he faced was one faced by him personally and not by Pakistanis generally (s.36(2B)(c)) because those issues were not relevant to his review.
In this case, the Tribunal was not required to turn its mind to s.36(2B)(b) and state protection in the complementary protection context because it had already found, when considering the applicant’s claims against the Convention tests, that he had not been truthful, that his allegations were not to be believed and that his adherence to Shia Islam did not provide a sufficient basis to fear a real risk of harm in Pakistan. In circumstances where the Tribunal had already rejected the applicant’s factual claims before it turned to consider the question of complementary protection, s.36(2B)(b) did not have to be considered because the question of the availability of state protection had, by virtue of those antecedent findings, become irrelevant.
I therefore find that the Tribunal did not err as the applicant alleged in the second ground of his amended application.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 24 February 2015
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