SZVJE & Ors v Minister for Immigration & Anor
[2016] FCCA 594
•18 April 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVJE & ORS v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 594 |
| Catchwords: MIGRATION – Review of decision of former Refugee Review Tribunal – refusal of protection visas – applicants claiming persecution in Pakistan – applicants found to have exaggerated their claims and fears found not to be well-founded – real chance test – Tribunal falling into error by assessing the risk of harm in Lahore relative to other places in Pakistan. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.36, 65 |
| Chan Yee Kin v Minister for Immigration [1989] HCA 62; (1989) 169 CLR 379 Minister for Immigration v Li [2013] HCA 18; (2013) 249 CLR 332 Minister for Immigration v SZMDS [2010] HCA 16; (2010) 240 CLR 611 Minister for Immigration v SZQRB [2013] FCAFC 33; 210 FCR 505 |
| First Applicant: | SZVJE |
| Second Applicant: | SZVJG |
| Third Applicant: | SZVJF |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2981 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 18 March 2016 |
| Delivered at: | Sydney |
| Delivered on: | 18 April 2016 |
REPRESENTATION
| Solicitors for the Applicants: | Mr M Jones of Parish Patience Immigration Lawyers |
| Counsel for the Respondents: | Mr D Hughes |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
The name of the second respondent is amended to “Administrative Appeals Tribunal”.
A writ of certiorari shall issue removing the record of the former Refugee Review Tribunal decision made on 29 September 2014 into this Court for the purpose of quashing it.
A writ of mandamus shall issue requiring the Administrative Appeals Tribunal to redetermine the review application according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2981 of 2014
| SZVJE |
First Applicant
| SZVJG |
Second Applicant
| SZVJF |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal). The decision was made on 29 September 2014. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas.
The following statement of background facts is derived from the submissions of the parties.
The applicants are citizens of Pakistan. The first applicant is the wife of the second applicant (wife and husband). The third applicant is their daughter who was born in Australia in 2010 (daughter).
The wife and husband entered Australia in July 2009 on student visas. They applied for protection visas on 22 April 2013[1]. The wife and husband each made claims for protection[2]. The daughter did not make any separate claims for protection; she applied as a member of the family group[3].
[1] Court Book (CB) 1
[2] CB 13, 29
[3] CB 44
In their applications, the wife and husband each made claims to fear persecution in Pakistan because they were Shia Muslims who are members of prominent families known to be Shia[4]. The wife also claimed to fear persecution because she is a Shia lawyer and because she wrote newspaper columns on social issues including women’s rights; the husband made claims relating to his family’s involvement in organising religious events. Those claims were supplemented in September 2013 by more detailed statements which raised new claims of physical violence and torture[5]. Their migration agent also provided a written submission including eight separate “social group” claims, and documents said to support their claims[6].
[4] CB 22, 38
[5] CB 261, 265
[6] CB 65 – 258
A delegate of the Minister interviewed the applicants on 26 October 2013, after which the representative provided a further submission[7]. On 20 December 2013, the delegate decided to refuse the application[8].
[7] CB 286
[8] CB 293
On 8 January 2014 the applicants applied to the Tribunal for a review of the delegate’s decision[9]. A further submission was provided to the Tribunal as well as a statutory declaration[10]. The representative also provided photos, and a statutory declaration from the wife’s brother who lives in Australia[11].
[9] CB 322
[10] CB 389, 412
[11] CB 453, 457
The applicants were invited to attend a hearing on 13 June 2014, which they attended with a representative[12]. After the hearing, the representative provided further submissions and evidence[13].
[12] CB 379, 469
[13] CB 478
On 29 September 2014, the Tribunal decided to affirm the decision under review[14].
[14] CB 547
The Tribunal found that the wife and husband had considerably exaggerated their claims[15] and did not accept any of their claims. It did not accept the wife’s claims to have been attacked by police officers[16]. It did not accept that she advocated women’s rights in her writings or that she would do so on her return; nor did it believe that she had stopped writing articles because of threatening telephone calls[17]. The Tribunal did not believe the husband’s claims to have been tortured or attacked[18], or that he continually changed address because of fear of persecution[19]. It did not accept that documents provided by the husband were genuine[20]. It did not accept that either the wife or husband had a genuine fear of persecution in Pakistan[21].
[15] at [68], [78]
[16] at [73]
[17] at [77]
[18] at [80]
[19] at [82]
[20] at [84]
[21] at [82]
The Tribunal did accept that the applicants were Shia Muslims who come from families which are prominent or well known in their local areas[22], but it did not find that they would face any real chance of persecution for this reason[23]. It did not accept that Shia lawyers were targeted[24]. The Tribunal also did not consider that there was a real chance that the applicants would be persecuted or face significant harm in Lahore because of sectarian violence[25].
[22] at [83]
[23] at [97]
[24] at [93]
[25] at [100], [114]
The present proceedings
These proceedings began with a judicial review application filed on 27 October 2014. The applicants continue to rely upon that application. There are three particularised grounds in the application:
1.The Tribunal erred by failing to take into account written submissions and arguments put to it before the matter was finally determined.
Particulars
The Tribunal's decision was dated 29 September 2014 but was not sent to the Applicants, and therefore not finally determined, before 1 October. On 30 September the Applicants' solicitors sent further submissions to the Tribunal by fax, but the Tribunal did not take them into account before the matter was finally determined.
2. The Tribunal's findings with regard to a real chance of persecution and real risk of significant harm were based on an incorrect test.
Particulars
The Tribunal accepted that the level of sectarian violence in Lahore was “extremely serious”, but was “less severe” than in other parts of Pakistan. The test of a real chance or real risk is whether the chance or risk actually faced by the applicant is not remote, insubstantial or far-fetched. It is not a relative test to be measured against other parts of the country.
3. The Tribunal reached conclusions on the evidence before it that were so unreasonable that no reasonable Tribunal could have reached those conclusions.
Particulars
The Tribunal's findings of fact in relation to the motivation of anti-Shia terrorist groups in killing Shia professionals was specious and perverse to the extent that no reasonable Tribunal could have made such findings.
The first ground was not pressed.
I have before me as evidence the court book filed on 9 January 2015. The applicants and the Minister both made oral as well as written submissions. I have been assisted by the submissions of both parties.
Consideration
Ground 2 – an incorrect test?
Applicant’s contentions
The applicants claim that they are owed protection obligations by Australia both under the Refugees Convention and Protocol and the “complementary protection” provisions of s.36(2)(aa) of the Migration Act 1958 (Migration Act).
The test for whether a person has a well-founded fear of persecution within the meaning of the Convention is whether there is a real chance that the claimed persecution may occur. A real chance is one that is not remote, insubstantial or far-fetched and may be statistically less than 10 per cent[26].
[26] Chan Yee Kin v Minister for Immigration [1989] HCA 62; (1989) 169 CLR 379 (Chan)
The test of whether there is, within the meaning of s.36(2)(aa), a real risk of significant harm is the same as the test of whether there is a real chance of persecution[27].
[27] Minister for Immigration v SZQRB [2013] FCAFC 33; 210 FCR 505 at [246] (SZQRB)
The applicants had been living in Lahore before coming to Australia. The Tribunal considered evidence of the level of sectarian violence directed towards Shias in Pakistan, some supplied by the applicants and some from its own sources. In considering whether there was a real chance in the Convention sense, the Tribunal said[28]:
As I indicated to the applicants in the course of the hearing before me I accept that many Shia Muslims have been killed in Lahore and I do not dispute the assessment of the editorial team of the South Asia Studies Project of MEMRI that the situation is ‘extremely serious’. Any level of sectarian violence is obviously extremely serious. However, I remain of the view that, as I put to Ms Virk, three of the five sources consulted by the Canadian Immigration and Refugee Board agreed that the violence was less severe in Lahore than elsewhere in Pakistan. The Jinnah Institute stated that there was less violence against Shias in Lahore and Multan when compared to Quetta and Karachi, the Human Rights Commission of Pakistan said that the problem was not severe for Shia Muslims in Lahore and Multan and the PhD candidate (who the applicants’ representatives described as ‘unknown’ but who is identifed in the research response as a PhD candidate at McGill University who has studied Islamic law and who was a fellow at the Lahore-based Islamic research foundation al-Mawrid) said that Lahore and Multan did not have the same level of sectarian violence as other ‘remote’ areas of Pakistan.
[28] CB 576 at [99]
In considering the complementary protection grounds, the Tribunal said[29]:
As I indicated to the applicants, I accept that there is sectarian violence in Pakistan and that it is causing hundreds of deaths in Pakistan each year. As I put to them, however, I consider that it is relevant, in this context that Shia Muslims constitute approximately 23 per cent of the population of Pakistan, meaning that there are around 43 million Shias out of a population of 190 million. As I likewise put to them, I also consider it relevant that in my view the evidence set out in the Canadian Immigration and Refugee Board research response to which their representatives referred suggests that there is less sectarian violence in Lahore than elsewhere in Pakistan. As I have found above, I consider that there is only a remote chance that the applicants will fall victim to sectarian violence if they return to Lahore. I do not accept on the evidence before me that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Pakistan, there is a real risk that they will suffer significant harm in the context of the sectarian violence which I accept continues to occur in Pakistan. [footnotes omitted]
[29] CB 581 at [114]
The test of whether there is a real chance or a real risk of harm is not a relative one. It is not determinative whether the risk in one place is “less severe” than the risk in another place. What matters is the actual level of risk in any particular place. The applicants contend that, at no point in its reasoning does the Tribunal make an absolute assessment of the level of risk the applicants would face in Lahore (although it accepts at [99] that the situation there is “extremely serious”).
To reach the conclusion that there is only a remote chance of harm based on a comparison of risk between Lahore and other places in the country is to apply a test that is not supported by the High Court in Chan or the Full Federal Court in SZQRB, or by any other authority for that matter.
Minister’s contentions
The Minister resists the first ground on three bases. First, the Tribunal’s reasons must be understood against the background of a concession made by the applicants’ representative that “not all Shia Muslims faced problems in Pakistan but … those who had an adverse profile did”[30]. When the Tribunal’s findings are considered as a whole, it is clear that the Tribunal in fact found that the applicants did not have any adverse profile[31].
[30] at [27]
[31] see especially [88] (applicants would not be targeted because of relationship with husband’s family), at [93] (Shia lawyers are not targeted), at [94] (applicants will not be targeted because they are Shia intellectuals and professionals), at [96] (wife will not be targeted because she is a modern qualified woman with a liberal mindset or because she is an educated female), at [97] (applicants would not be targeted because they come from prominent Shia families), at [102] (applicants will not be targeted because they have spent time in Australia or because the wife studied in Australia); at [115] (applicants will not be identified as failed asylum seekers or persons who provided anti-Taliban information)
Secondly, this was not a case where relocation arose as an issue. Lahore was the place where the husband had lived from 2000 to 2009, and is where the applicants would return. The Tribunal did not accept that between 2000 and 2009 the applicant had experienced any problems while living there[32].
[32] at [88], [89], [110]
Thirdly, the Tribunal repeatedly stated the correct test, and even did so in the very paragraphs where the risk of sectarian violence is considered and where error is alleged[33]. The proper conclusion is said to be that the Tribunal applied the correct test.
[33] at [100], [114]
The Minister submits that this is a case where it can truly be said: “the [Tribunal] starts and finishes with the correct test; it is only some phraseology which provides the basis for a conclusion that [he] had slipped …”[34]. The Minister contends that the applicants’ submissions seek to take one part of the Tribunal’s reasoning out of context. When the reasons are taken as a whole, it is said to be clear that the correct test was applied.
[34] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
Resolution
I have considered at the outset whether, regardless of the asserted errors made by the Tribunal, there was an independent basis for the Tribunal’s reasoning in that the Tribunal found that the applicants did not genuinely fear persecution in Pakistan. I have concluded that the Tribunal’s reasoning in that regard could not be relied upon as an independent basis for the Tribunal’s decision for three reasons: first, the issue was only lightly touched upon at the trial of this matter in oral submissions; secondly, if the matter were to be remitted to the Tribunal, differently constituted, a different view might be taken on the issue of subjective fear; and thirdly, in my opinion, the issue of subjective fear is only relevant to the refugee criterion for a protection visa, not the complementary protection criterion.
In my opinion, the applicants have established error by the Tribunal in respect of this ground, and the error goes to jurisdiction. It is true, as the Minister submits, that the Court should not approach the Tribunal’s reasoning with an eye too keenly attuned to error. Further, if the Tribunal begins and ends with the correct test and what is impugned is merely some unfortunate phraseology in between, a conclusion of jurisdictional error should not be reached. In the present case, however, the problems run deeper. In relation to the refugees criterion, the applicants attack the Tribunal’s reasoning at [99]. Those reasons need to be read in context. The Tribunal went on at [100][35]:
I do not accept that, as the applicant’s representative submitted, the view of the Asian Human Rights Commission that the situation in Lahore and Multan is no different than in other areas of Pakistan in terms of the lack of safety and protection for Shia Muslims should be preferred to the view of the Human Rights Commission of Pakistan because the Asian Human Rights Commission is outside Pakistan. If anything I would have thought that more weight should be given to information from sources with first-hand knowledge of the situation within Pakistan. I approach the assessment of the risk to the applicants in the context of the sectarian violence in Lahore on the basis of my acceptance that they are Shia Muslims and that they take part in Shia religious meetings and processions. However, having regard to all of the evidence before me including the evidence that there is less sectarian violence in Lahore than elsewhere in Pakistan, I consider that there is only a remote chance that the applicants fall victim to sectarian violence if they return to Lahore. I do not accept on the evidence before me that there is a real chance that they will be persecuted in the context of the sectarian violence which I accept continues to occur in Pakistan if they return to Lahore now or in the reasonably foreseeable future.
[35] CB 577
It is, in my opinion, sufficiently clear from the Tribunal’s reasoning in both [100] and [99] that the Tribunal was reasoning essentially on the basis of relative risk within Pakistan rather than focusing on the degree of risk in Lahore itself. It was no answer to the applicants’ claim that they would be worse off elsewhere in Pakistan. The Tribunal accepted that the situation in Lahore was “extremely serious” (whatever that might mean) and accepted that there was sectarian violence in Lahore (as elsewhere). What follows, however, is simply an examination of relative risk between Lahore and elsewhere rather than an analysis of the real risk in Lahore itself.
It is true that the Tribunal refers at [100] to “all of the evidence” before it, but what was that evidence? I reject the Minister’s contention that it included the evidence of the first applicant’s profile, because the Tribunal was not here considering the claims of that profile, but rather the general claim of sectarian violence. The applicants could be caught up in that violence regardless of their profile. The only evidence referred to by the Tribunal in considering that claim was the relative incidence of violence. The question for the Tribunal, however, was whether the established level of sectarian violence in Lahore constituted a real risk to the applicants.
A proper foundation was not laid by the Tribunal for its conclusion that there was not a real chance that the applicants would suffer persecution in the context of sectarian violence in Lahore.
In my opinion, the error is repeated in relation to the complementary protection criterion at [114].
The applicants have succeeded in establishing error in respect of Ground 2 in their application and they should receive the relief they seek.
Ground 3 – an irrational decision?
It is not strictly necessary to consider this ground, and there are challenges in dealing with it, but, in case I am wrong in relation to Ground 2, I have considered it.
The first applicant several times stated that she feared harm based on the fact that she was a female Shia lawyer. Evidence was before the Tribunal that Shia lawyers had been attacked and killed by the Taliban and other groups and the Tribunal accepted[36] that she would be able to be identified as a female Shia lawyer. The Tribunal said at [92][37]:
[The first applicant] said that if you looked at the overall number of killings of lawyers it would be visibly clear that most of the lawyers who had been killed had either had Shia names or had been known as Shias or had been working for some Shia cause or had been a member of some Shia organisations. She asked why one would think that a person had been killed for some reason other than their religion if so many factors were common in certain people who had been killed. With respect, if people who happen to be Shia lawyers are killed because they are working for Shia causes or because they were members of Shia organisations then this does not suggest that people are at risk because they are Shia lawyers but rather that they are at risk because they are working for Shia causes or because they are members of Shia organisations.
[36] CB 573 at [89]
[37] CB 574
The Tribunal's reasoning is said to be “specious”. The factual circumstances that it did not contest were that Shia lawyers were being killed. The Tribunal was clearly aware of the highly sectarian nature of Pakistani society and that lawyers “working for Shia causes” or “members of Shia organisations” would almost certainly be Shias. The applicants complain that, to imagine that the sectarian groups targeting them adhered to some civilised nicety of killing them for what they were doing rather than who they were, and that therefore there was no risk to any other Shia lawyers is fanciful and falls outside of the “area of decisional freedom” identified by French CJ in Minister for Immigration v Li (Li)[38].
[38] [2013] HCA 18; 249 CLR 332 at [28]
The applicants also complain that the Tribunal's finding depends on an assumption, for which the Tribunal does not refer to any evidence, that the Taliban and similar groups distinguish between Shia lawyers who work for Shia causes or organisations and those who do not. The asserted absurdity of this reasoning is said to be obvious since it ignores the fact that those groups must be motivated by anti-Shia hatred in the first place.
The “unreasonableness” of the Tribunal's findings is said to be clear in respect of both the Convention and the complementary protection considerations. Under the Convention, the first applicant claims there is a real chance she will be persecuted because of her membership of the social group – Shia lawyers – that the evidence shows is being targeted. Under s.36(2)(aa), causality is not required and the simple equation of Shia lawyers being killed and her being a Shia lawyer is said to establish the risk of harm.
The applicants submit that no reasonable decision maker could have concluded that Shia lawyers were not being targeted and killed because of their religion.
For his part, the Minister contends that the Tribunal’s reasoning was both rational and reasonable.
The Tribunal considered the material put forward as suggesting that Shia lawyers were targeted as a group. The Tribunal found that Shia lawyers who had been killed in Pakistan had not been targeted just because they were Shia lawyers – the individuals in question were targeted because of the cases they took[39]. It thus concluded that it was not satisfied on the material before it that the first applicant would not face harm by reason of being a Shia lawyer or a female Shia lawyer[40].
[39] at [93]
[40] see [91] – [93], [112]
The Minister contends that the applicants’ submission on legal unreasonableness makes the error identified by Allsop CJ in Minister for Immigration v Stretton[41] by focusing on particular expressions in the High Court’s decision in Li. The correct test is whether the decision as a whole can be characterised as going beyond the source of power[42]. In any event, there are numerous cases which say, in one way or another, that this is very hard to make out.
[41] [2016] FCAFC 11 at [10]
[42] Stretton at [11]
In this case, the Minister contends that the reasoning was rational. It was based on an assessment of country information for which lucid reasons were given. The Tribunal made findings that are said to be open on the material before it and were not findings at which no rational or logical decision maker could arrive on the same evidence[43].
[43] Minister for Immigration v SZMDS [2010] HCA 16 (26 May 2010); (2010) 240 CLR 611 at [130] (SZMDS)
While the applicants’ contention is clearly arguable, on balance I prefer the Minister’s submissions. First, there is the difficulty that the Tribunal was not exercising a discretion in relation to the impugned reasoning but was, rather, determining whether it could reach a state of satisfaction in relation to the applicants’ eligibility for the visa they sought. The decisions in Li and Stretton concerned the exercise of a discretion. Differing views were expressed in relation to the question of whether the reasoning in Li (and Stretton) can be applied to the statutory task entrusted to the Tribunal pursuant to s.65 of the Migration Act. Assuming it can, the relevant test is that set out by Crennan and Bell JJ in SZMDS[44]:
In the context of the Tribunal's decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
[44] at [130]
There is, in my opinion, much to be said for the applicants’ contention that the Tribunal’s reasoning at [92] was specious, in the sense of being superficially plausible but wrong. In my opinion, the Tribunal’s reasoning is based upon an unsupported assumption that there is either no unifying factor drawing people at risk to Shia causes or Shia organisations or that, if there is a unifying factor, it is something other than the Shia religion. That assumption could hypothetically be tested to see if it is sound. For example, is there any evidence of non Shia lawyers being killed while working for Shia organisations or for Shia causes? Secondly, if there was evidence of non Shia lawyers being killed while working for Shia organisations or working on Shia causes, were they killed because of what they were doing or because they were taken to be Shia? Nevertheless, the Tribunal’s reasoning, while dubious, is but one part of a detailed and comprehensive set of reasons that drew the Tribunal to a conclusion that it could not attain the level of satisfaction required for the purposes of s.65 of the Migration Act. In order to establish jurisdictional error the applicants would have to persuade the Court not only that the Tribunal’s reasoning in the particular paragraph was irrational but also that it bore so strongly on the Tribunal’s conclusion pursuant to s.65 of the Migration Act that that conclusion was unreasonable. I am not so persuaded.
This ground fails.
Conclusion
In view of the applicants’ success in relation to Ground 2, I will grant the relief they seek.
I will hear the parties as to costs.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 18 April 2016
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