SZTWQ v Minister for Immigration and Border Protection

[2015] FCA 950

FEDERAL COURT OF AUSTRALIA

SZTWQ v Minister for Immigration and Border Protection [2015] FCA 950

Citation:	SZTWQ v Minister for Immigration and Border Protection [2015] FCA 950
Appeal from:	SZTWQ v Minister for Immigration & Anor [2015] FCCA 1501
Parties:	SZTWQ v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number(s):	NSD 748 of 2015
Judge(s):	DAVIES J
Date of judgment:	28 August 2015
Catchwords:	MIGRATION – Protection (Class XA) Visa – appeal from decision of the Federal Circuit Court of Australia – no error of law – appeal dismissed
Legislation:	Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa)
Cases cited:	Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1; [2004] HCA 18
Date of hearing:	20 August 2015
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	15
Counsel for the Appellant:	Mr P Bodisco
Solicitor for the Appellant:	Ms M Byers
Solicitor for the First Respondent:	Mr M Wiese of Clayton Utz Lawyers
Counsel for the Second Respondent:	The Second Respondent entered a submitting appearance, save as to costs

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 748 of 2015

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZTWQ
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DAVIES J
DATE OF ORDER:	28 AUGUST 2015
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The Appellant is to pay the costs of the First Respondent.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 748 of 2015

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZTWQ
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DAVIES J
DATE:	28 AUGUST 2015
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant has appealed the decision of the Federal Circuit Court (“FCC”) dismissing the appellant’s judicial review application from a decision of the second respondent (“the Tribunal”). The Tribunal affirmed the decision of a delegate of the first respondent (“the Minister”) not to grant the appellant a Protection (Class XA) Visa.

   THE TRIBUNAL DECISION

2. The appellant is a citizen of Pakistan who arrived in Australia on a student visa in March 2011. The appellant claimed that in Pakistan he had been targeted by vigilante Sunni extremist groups and threatened by his father’s cousin because of his engagement to a woman who is a Sunni Muslim, when the appellant is a Shia Muslim. The appellant claimed to fear persecution for reasons of his membership of a particular social group and/or for reasons of his religion. The particular social group was characterised by the appellant’s migration agent to the Tribunal as “people who have acted against traditional cultural and religious norms in a manner that would enrage religious activists and extremists”. The appellant claimed that the state authorities were both unable and unwilling to offer the appellant an adequate level of protection by international standards and internal relocation was not suitable as the harm feared was not localised. 

3. The Tribunal accepted that the appellant is a Shia Muslim from Pakistan. However the Tribunal did not accept that he was telling the truth about his engagement to a Sunni woman, or accept that a police report and a hospital report provided by the appellant in support of his claim to have been attacked by members of a Sunni group were genuine documents. The Tribunal also did not accept that he was telling the truth about his reasons for leaving Pakistan. The Tribunal at [47] accordingly did not accept that the appellant has a well-founded fear of persecution for reasons of his membership of a particular social group and/or for reasons of his religion based upon those claims.

4. Relevantly, the Tribunal also considered whether the appellant was at risk of persecution in Pakistan because he is a Shia Muslim. The Tribunal stated at [49]:

   … I accept that sectarian violence continues to result in hundreds of deaths in Pakistan each year. As I put to him, however, Shia Muslims constitute approximately 23 per cent of the population of 190 million or 43 million and I consider that there is only a remote chance that he will fall victim to sectarian violence if he returns to Pakistan now or in the reasonably foreseeable future. At the hearing before me [the appellant’s] representative quoted from the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Members of Religious Minorities from Pakistan (14 May 2012) in which UNHCR said that it considered that members of the Shia community, particularly those in areas where Taliban-affiliated groups were active, such as the north-west of Pakistan and in urban centres, might, depending on the individual circumstances of the case, be in need of international refugee protection on account of their religion and/or (imputed) political opinion. As the Guidelines emphasise, each case must be looked at on the basis of its individual circumstances. I do not accept on the evidence before me that there is a real chance that [the appellant] will be persecuted for reasons of his religion or political opinion imputed to him as a Shia Muslim if he returns to Pakistan.
   (footnotes omitted)

   THE FCC DECISION

5. The appellant sought judicial review of the Tribunal’s decision on two grounds. The appellant’s first ground alleged that the Tribunal failed to afford procedural fairness to the appellant when rejecting his claim to have become engaged to a Sunni woman. The FCC rejected this ground, and the appellant has not appealed the rejection of that ground.

6. The appellant’s second ground alleged the following:

   The Tribunal has asked itself the wrong question.

   Particulars

   (a)At [49] [of] the decision, the tribunal accepted that “sectarian violence continues to results in hundreds of deaths in Pakistan each year”;

   (b)The Tribunal then put to the [appellant] that “however, Shia Muslims constitute approximately 23 per cent of the population of 190 million or 43 million”;

   (c)This became the “makeweight” in the tribunal’s conclusion that “there is only a remote chance that he will fall victim to sectarian violence if he returns to Pakistan now or in the reasonably foreseeable future”;

   (d)The Tribunal therefore asked itself the wrong question assuming that Shia Muslims would constitute 23% of those killed as a result of sectarian violence and therefore not taking into account geographical factors or the possibility that those killed due to sectarian violence may disproportionately constitute Shia Muslims.

7. Ground 2 was directed at paragraph 49 of the Tribunal’s reasons. It was submitted on behalf of the appellant that the Tribunal failed to take into account the particular circumstances of the appellant but, rather, based its finding on the assumption embedded in the Tribunal’s analysis at [49] that the representation of Shia Muslims at risk of harm involving death due to sectarian violence will follow the representation of Shia Muslims in the general population. It was submitted that there was no evidence for that proposition and it might be assumed that members of a persecuted minority religious group may make up a larger percentage of victims of sectarian violence than their representation in the broader population. It was submitted that the Tribunal, in the circumstances, had asked itself the wrong question as the Tribunal did not ask whether, as the result of the accepted occurrence that sectarian violence results in hundreds of deaths in Pakistan each year, the appellant has a well-founded fear of persecution for reasons of religion.

8. The FCC held that the ground revealed a misunderstanding of the Tribunal’s reasons and also what it means “to ask the wrong question”. At [33], the FCC stated that:

   In the latter respect, it may well be that the Tribunal engaged in some illogical reasoning but that does not mean that it failed to answer the question posed by the [Migration Act 1958 (Cth)], namely whether the [appellant] met the criteria for the grant of a protection visa, and, in particular whether the [appellant] had a well-founded fear of persecution for a Convention reason.

9. At [33] and [34], the FCC accepted the Minister’s submission that the Tribunal did not, as any part of its reasoning, find that only 23% of victims of sectarian violence in Pakistan were Shia Muslims but was simply saying that there are approximately 43 million Shia Muslims in Pakistan and, as one of 43 million Shia Muslims, there was only a remote chance that the appellant would fall victim to sectarian violence if he returned to Pakistan.

10. The FCC concluded at [35]:

    The [appellant] also argued as part of this ground that the Tribunal was required to have regard to other issues in order to resolve the question of the risk of harm as a result of sectarian violence. Those issues included the location of the violence, and the strength and willingness of the police force to prevent it. He argued that it was not rational simply to approach the matter as a matter of mathematics. I disagree. If the evidence had revealed that the [appellant] himself was at a particular risk of sectarian violence because of where he chose to live, what he did, how he dressed or any other matter, it would have been incumbent on the Tribunal to deal with those matters. However, the evidence about sectarian violence was all at a very general level and there was nothing in it to indicate that anyone with the [appellant’s] characteristics or the [appellant] himself would stand out for special attention in such violence. Indeed, the country information relied on by the [appellant] before the Tribunal specifically referred to the proportion of the population represented by Shia Muslims. Against that background, the fact that the [appellant] was just one of 43 million potential victims of sectarian violence was logically probative of the Tribunal’s finding that there was only a remote chance that he would be harmed as a result of that violence.

    Accordingly, this ground was rejected.

    THE APPEAL

11. There is one appeal ground:

    His Honour erred in not finding that the Tribunal asked itself the wrong question.

    Particulars

    (a)His Honour erred at [33] of the decision by finding that the Tribunal had answered the question of whether the Appellant met the criteria for the grant of a protection visa in circumstances where the Tribunal had only dealt with the proposition that sectarian violence resulted in “hundreds of deaths” as opposed to other types of serious harm;

    (b)His Honour erred at [33] and [34] of the decision by engaging in a merits-based [assessment] of the Appellant’s claims regarding sectarian violence and sidestepping the issue of whether the Tribunal had addressed the question of the risk of serious harm posed by the statute by reference to the individual circumstances of the Appellant’s claim;

    (c)His Honour erred at [35] of the decision by holding that it was “rational” to deal with issues raised by the Appellant regarding the geographical location of the violence and the strength and willingness of the police force to prevent it as a matter of “mathematics”.

12. It was submitted for the appellant that the Tribunal did not apply the correct test because:

    (a)the Tribunal only looked at deaths, not serious harm;

    (b)the Tribunal failed to take into account whether Shia Muslims as a minority group may be more exposed to harm due to lack of state protection and/or their geographical location;

    (c)the Tribunal did not consider the appellant’s claim to fear harm due to his minority status taking into account geographical factors referred to by his migration agent;

    (d)it was squarely raised that the individual circumstances of the appellant would give rise to a claim;

    (e)it was accepted by the Tribunal that the UNHCR Eligibility Guidelines and the appellant’s migration agent had raised geographical factors outside the scope of the mathematical analysis engaged in by the Tribunal;

    (f)the only discernible reason for the Tribunal’s conclusion that the appellant would not be at risk of persecution for those reasons turned on the crude mathematical analysis engaged in by the Tribunal;

    (g)a fair reading of the material advanced by the appellant demonstrates that the claim was advanced at a level of specificity.

13. It was submitted that the FCC therefore sidestepped the issues raised by the appellant and the question posed by the statute and instead engaged in merits based assessment about the quality of the claim to justify a process of reasoning that was flawed and directed away from the question posed by the statute. It was further submitted that a consequence of the misdirection was a failure to engage in the issues relating to the adequacy of state protection, citing the plurality in Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1; [2004] HCA 18 at [21]:

    Having regard to both the immediate and the wider context, a majority of the House of Lords in Horvath took the view that, in a case of alleged persecution by non-State agents, the willingness and ability of the State to discharge its obligation to protect its citizens may be relevant at three stages of the enquiry raised by Art 1A(2). It may be relevant to whether the fear is well-founded; and to whether the conduct giving rise to the fear is persecution; and to whether a person such as the first respondent in this case is unable, or, owing to fear of persecution, is unwilling, to avail himself of the protection of his home State. Lord Hope of Craighead quoted with approval a passage from the judgment of Hale LJ in the Court of Appeal in Horvath [[2001] 1 AC 489 at 497] where she said, in relation to the sufficiency of State protection against the acts of non-State agents:

    “[I]f it is sufficient, the applicant’s fear of persecution by others will not be ‘well founded’; if it is insufficient, it may turn the acts of others into persecution for a Convention reason; in particular it may supply the discriminatory element in the persecution meted out by others; again if it is insufficient, it may be the reason why the applicant is unable, or if it amounts to persecution unwilling, to avail himself of the protection of his home State.”
    (footnotes omitted)

14. The appellant’s submissions are rejected. The appellant’s case before the Tribunal was based upon his claims that he had become engaged to a Sunni woman and, in consequence, was targeted and victimised by Sunni extremist groups and threatened by his father’s cousin. Those claims were rejected in whole by the Tribunal which disbelieved the appellant. Having disbelieved the appellant on those claims, the Tribunal considered whether there was a risk of serious harm to the appellant as a result of sectarian violence and concluded that the risk was remote.  That assessment was based upon the population of Shia Muslims in Pakistan relative to the total population. This is made clear in paragraph 52 of the Tribunal’s reasons. Contrary to the submission for the appellant, that assessment did not proceed, or depend, on some narrow or limited view as to what may constitute serious harm. Furthermore, as the FCC correctly stated, it was not part of the appellant’s claim that he was at a particular risk of sectarian violence because of where he lived, or for any other circumstance apart from the claims on which he was disbelieved. No other individual circumstances of his case presented for consideration. Minister for Immigration and Multicultural Affairs v Respondents S152/2003 did not compel a different approach by the Tribunal and the FCC was correct for the reasons given at [33] to [35] to reject the ground of review below. No jurisdictional error has been shown in the Tribunal decision.

15. Accordingly, the appeal should be dismissed.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies.

Associate:

Dated:        28 August 2015