SZVRQ v Minister for Immigration

[2017] FCCA 626

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVRQ v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 626

Catchwords:
MIGRATION – Judicial review of decision of Refugee Review Tribunal (Tribunal) not to grant applicant a Protection (class XA) visa – whether Tribunal misconstrued or misapplied expression “serious harm” within the meaning of s.91R of the Migration Act 1958 (Cth) – whether the Tribunal acted irrationally or unreasonably in concluding applicant would be able to meet low level extortion – whether Tribunal misconstrued definition of “refugee” given in the Refugees Convention by concluding that the applicant’s being detained in a foreign country because he was not a national of that country did not amount to persecution by reason of nationality – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.91R, 91R(2), 91R(2)(b)

Cases cited:

Minister for Immigration and Border Protection v SZSCA [2014] HCA 45; (2014) 254 CLR 317

SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175

S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473

Applicant: SZVRQ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3236 of 2014

Judgment of: Judge Manousaridis

Hearing date: 17 March 2016

Delivered at: Sydney

Delivered on: 31 March 2017

REPRESENTATION

Counsel for the Applicant: Mr N Dobbie

Solicitors for the Applicant: Dobbie and Devine Immigration lawyers Pty Ltd

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The Administrative Appeals Tribunal is substituted for the Refugee Review Tribunal as the second respondent.

2. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3236 of 2014

SZVRQ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. In this application for judicial review, the applicant claims the second respondent (Tribunal) made jurisdictional errors by affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (class XA) visa (Protection visa) on the basis of findings that:

   a)the applicant, a citizen of Pakistan and of Rohingya ethnicity, would not suffer “serious harm” within the meaning of in s.91R of the Migration Act 1958 (Cth) (Act) by being subjected to low level extortion because such low level extortion would not affect his capacity to subsist;[1] and

   b)although there was a possibility that if the applicant were to be returned to the United Arab Emirates (UAE) he would be detained, that would not occur because of the applicant’s race, religion, nationality, membership of a particular social group or political opinion, but because the applicant would be in the UAE illegally without proper documentation.[2]

   [1] CB581, [63]

   [2] CB585, [78]

Applicant’s claims for protection

1. The applicant claimed he is a stateless Rohingya. He claimed he was born in the UAE, but that he was denied schooling there, that he was vulnerable to exploitation, and that he used false documents to gain employment there. The applicant further claimed that for two weeks in 2002 he was detained in the UAE as an illegal immigrant and that, in 1992, the applicant’s father was detained and tortured for one week. The applicant claimed his last employer forced the applicant to resign, which resulted in the applicant’s work visa being cancelled. That led the applicant to obtain a fraudulent Pakistani passport to travel to Australia and claim protection.[3]

   [3] CB563, [2]

Tribunal’s decision

1. The Tribunal accepted the applicant is a Rohingya,[4] that his parents were from Arakan State in Myanmar,[5] that he was born and raised in the UAE,[6] and that his family remain there.[7] The Tribunal did not accept, however, the applicant is stateless; it was satisfied the applicant is a citizen of Pakistan.[8] The Tribunal, therefore, assessed the applicant’s claims for protection on the basis the applicant was a citizen of Pakistan.

   [4] CB567, [20]

   [5] CB567, [20]

   [6] CB577, [49]

   [7] CB577, [498]

   [8] CB577, [47]

2. The Tribunal considered country information concerning the treatment of Rohingya in Pakistan. The Tribunal accepted the applicant is likely to be treated as a Bengali Muslim in Pakistan because of his appearance, and that Myanmar Rohingya are considered in Pakistan to be Bengali Muslims.[9] The Tribunal then noted the following: there is a large community of Rohingya and Bengalis in Karachi; Rohingya in Karachi continue to face many difficulties, and are one of the city’s poorest and most vulnerable communities; and there is a lack of legal recognition of them, and they have no political power, which means their needs are ignored by powerful political groups. They consequently face a number of difficulties, including difficulties in being granted citizenship, passports, and national identity cards; they are harassed, arrested, or threatened with arrest for being illegal residents as a way for police to extract bribes; they are discriminated in employment; and they tend to earn a living in low-paid jobs. Not all Rohingya, however, live in destitute poverty or suffer extreme discrimination.

   [9] CB578, [55]

3. The Tribunal next noted that the country information concerning the Rohingya identified Rohingya who were not citizens of Pakistan and who had limited education, poorly paid jobs, and low socio-economic standing. The Tribunal, however, was of the view that the applicant’s background did not fit that profile because he appeared to be well educated, he has a Pakistani passport and a national identification card, he held a well-paid position in an international IT company, and he had travelled extensively internationally. The Tribunal considered “this to be an important distinction in considering the country information referred to above”.[10]

   [10] CB580, [59]

4. After setting out the definition of “serious harm” given in s.91R(2) of the Act,[11] the Tribunal considered whether the applicant would suffer serious harm if he were to settle in Pakistan. The Tribunal was not satisfied there was a real chance the applicant would be unable to obtain employment and therefore be unable to subsist. The Tribunal relied on the applicant’s history of employment, his having a passport and a national identification card, and his ability to read and write Arabic and English. The applicant was also not satisfied there is a real chance the applicant would be refused a Pakistani passport in the future.

   [11] The provision of the Act that applied to the applicant were those that existed at the date on which the applicant applied for a Protection visa 13 September 2012.

5. The Tribunal then considered the applicant’s circumstances against the country information to which the Tribunal had already referred concerning the vulnerability of Rohingya in Pakistan to extortion from the authorities. It noted that although such vulnerability is often borne from uncertainty about the legal status of Rohingya because of the large number of illegal immigrants in Pakistan, Rohingya who held valid documents were also vulnerable to having their documents rejected and falsely accused of being illegal and subjected to extortion for that reason. The Tribunal said that, because country information suggested Pakistani courts acquit those who have documentary proof of citizenship, the Rohingya who have spent years in gaol are those without citizenship papers. The Tribunal said that is not the case with the applicant. It nevertheless considered whether there is a real chance the applicant would be subjected to extortion on a regular basis, or being detained before the matter goes to court, because of his ethnicity and whether this would constitute serious harm. The Tribunal concluded:[12]

   The Tribunal does not accept that low level extortion that does not affect the applicant’s capacity to subsist would be sufficient to constitute serious harm. The Tribunal is not satisfied on the basis of the evidence before it that there is a real chance that the applicant would be subject to extortion at . . . such a level as to threaten his capacity to subsist or that he would be unable to pay the extortion required so that there is a real chance that he would be detained. The applicant has family living and working in UAE. He is educated and experienced. He has been able to access funds to travel extensively internationally. The Tribunal finds that the chance of him being detained as a Rohingya is remote.

   [12] CB581-582, [63]

6. The Tribunal also assessed the applicant’s claim on the assumption the applicant was not a citizen of Pakistan, and that his habitual place of residence was the UAE. The Tribunal referred to country information which indicated that work sponsorship is an essential pre-requisite for becoming a legal resident in the UAE, but the UAE respects the principle of non-refoulement. On the basis of that information, the Tribunal was not satisfied that, if the applicant returned to the UAE, he would be removed to a country where he would suffer persecution.[13]

   [13] CB584, [72]

7. The Tribunal then considered whether, if the applicant were returned to the UAE, there was a real chance the applicant would face serious harm in the UAE. The Tribunal referred to country information that indicated that 89% of the UAE’s population were non-citizens,[14] that non-citizens are subject to various forms of discrimination, and that stateless persons in UAE also face widespread discrimination.[15] The Tribunal noted, however, that although the applicant had claimed his father had been detained and tortured in February 1992 as an illegal immigrant, and the applicant himself had been detained as an illegal immigrant in 2002, the applicant was able to secure a well-paid job, he travelled regularly to other countries for holidays, he lived a very comfortable life, his brothers in the UAE were all employed, and the Tribunal was not satisfied the applicant had been denied an education.[16] The Tribunal, therefore, did not accept there is a real chance the applicant would suffer serious harm in the UAE as a Rohingya.[17]

   [14] CB584, [73]

   [15] CB584, [74]

   [16] CB585, [76]

   [17] CB585, [77]

8. The Tribunal accepted there is a possibility the applicant will be detained, as had occurred to the applicant and to his father in the past. The Tribunal did not, however, consider that would be because of the applicant’s race, religion, nationality, membership of a particular social group, or political opinion; the Tribunal was satisfied “it would be because he is in the UAE illegally without proper documentation”.[18]

   [18] CB585, [78]

9. The Tribunal also assessed the applicant’s claims against the complementary protection criterion provided for by s.36(2)(aa) of the Act. On the assumption the applicant is a citizen of Pakistan, the Tribunal was not satisfied that “low level extortion would constitute cruel or inhuman treatment or punishment as such extortion is inflicted as a means of financial gain for the extortionist”, and that the extortion would not be intended to inflict severe pain or suffering.[19] The Tribunal, therefore, was not satisfied it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan there is a real risk the applicant will suffer significant harm.[20] On the assumption the applicant was a stateless person, the Tribunal found there is no receiving country by which to assess the complementary protection criterion.

   [19] CB587, [83]

   [20] CB585, [85]

Ground 1(i) – misinterpretation or misapplication of “real harm”

1. The first ground of application is directed to the Tribunal’s conclusion I have set out in paragraph 7 of these reasons. The ground is as follows:

   The Tribunal failed to consider whether extortion of the Applicant by the authorities because of his ethnicity/particular social group, by itself, could constitute persecution. Rather, the Tribunal erroneously required that the extortion of the Applicant by the authorities had to have the additional element of threatening his capacity to subsist before that extortion could constitute persecution.

2. In his written submissions, the applicant submits the Tribunal failed to consider whether extortion, divorced from its impact on the applicant’s ability to subsist, could amount to “persecution” within the meaning of s.91R of the Act.[21] The applicant submitted the Tribunal was “required to consider whether being subjected to extortion from the authorities, motivated because of the Applicant’s ethnicity/particular social group, and presumably for his lifetime, constituted persecution”.[22] In his oral submissions, Mr Dobbie, who appeared for the applicant, referred to s.91R(2)(b) of the Act which included “significant physical harassment of the person” as an example of “serious harm”,[23] and submitted the Tribunal did not ask whether the extortion to which the Tribunal was satisfied the applicant would be exposed would amount to “significant physical harassment”.[24]

   [21] Applicant’s Outline of Submissions, [9]

   [22] Applicant’s Outline of Submissions, [9]

   [23] T6.30

   [24] T7.10

3. I do not accept the Tribunal “failed to consider whether extortion of the Applicant by the authorities because of his ethnicity/particular social group, by itself, could constitute persecution”. That is the very question the Tribunal said it considered. The Tribunal said it “has considered whether there is a real chance of the applicant being subjected to extortion on a regular basis, or being detained before the matter goes to court, because of his ethnicity and whether this would constitute serious harm”.[25] It is true, as the applicant submits, that the Tribunal answered that question by reference to its assessment of the effect the extortion is likely to have on the applicant’s capacity to subsist. That, however, does not reflect any view by the Tribunal that before the extortion could amount to serious harm it was necessary for the extortion to affect the applicant’s capacity to earn a livelihood. It reflected the Tribunal’s assessment of the manner in which the extortion could constitute serious harm to the applicant on the basis of the evidence before it. The Tribunal was of the view that the applicant had the capacity to meet the extortion without affecting his capacity to earn a livelihood, and, given the Tribunal’s view the applicant had the capacity to do so, the Tribunal was also of the view the applicant was likely to meet the extortion rather than go to gaol or spend any lengthy time in gaol.

   [25] CB581, [63]

4. The first ground, therefore, fails.

Ground 2(i) - irrationality

1. The second ground of application is also directed to the Tribunal’s conclusion I have set out in paragraph 7 of these reasons, and is as follows:

   In the event that it is found that the Tribunal did not fail to consider whether the extortion of the Applicant by the authorities because of his ethnicity/particular social group, by itself, could constitute persecution, any finding (if it is determined that such a finding was made) that extortion from the authorities does not constitute persecution is arbitrary, irrational, or unreasonable or illogical, such that it failed to exercise its jurisdiction.

2. In his written submissions, the applicant submitted the Tribunal acted irrationally, arbitrarily, or unreasonably because it failed to determine for how long the extortion would continue, there was no evidence on the basis of which the Tribunal could reasonably have determined whether the applicant could afford to maintain ongoing extortion payments, the Tribunal did not consider whether the amount the applicant would be required to pay would increase over time, and the Tribunal did not consider whether the applicant would pay out of fear of harm.

3. I do not accept these submissions. First, on a fair reading of its reasons, the Tribunal concluded the applicant would in the reasonably foreseeable future be at risk of being subjected to extortion. The basis of that reading is the Tribunal’s having attached to its reasons a section in which the Tribunal set out the principles which it considered to be relevant to its assessment of the applicant’s claims. The Tribunal there stated that whether an applicant is a person “in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future”.[26] Second, the Tribunal did identify the matters on which it relied for concluding the applicant would have the capacity to submit to extortion without that submission affecting his capacity to earn a livelihood. The Tribunal referred to the applicant’s family living and working in the UAE, the applicant’s being educated and experienced, and the applicant’s ability to have accessed funds to travel extensively internationally.[27] Third, although the Tribunal did not expressly find the applicant would pay out of fear of harm, the Tribunal’s finding that the applicant would submit to extortion necessarily implies a finding that the applicant would do so out of fear of the consequences of not submitting.

   [26] CB591, [11]

   [27] CB581-582, [63]

4. Mr Dobbie further submitted the Tribunal made the same error the Tribunal was found to have made in SZTAP v Minister for Immigration and Border Protection,[28] or at least the Tribunal made an analogous error. In SZTAP the Tribunal accepted that the mother paid money to officials in response to demands that the applicant would be abducted if the demands for the payment of money were not met. The Tribunal concluded, however, that the threats were only bluffs and the applicant, therefore, could not have had a well-founded fear of being abducted. The Full Federal Court found the Tribunal’s findings were illogical or unreasonable. Robertson and Kerr JJ said:[29]

   It is, in our view, illogical to found the conclusion that there was not an objective basis for the appellant’s fear on the absence of harm in the past, when the absence of harm was referable to the successful extortion of the payments, the payments being made to prevent the harm in question. The illogicality amounting to legal unreasonableness is that the past period of non-harm or non-interest in the appellant was co-extensive with the period when the appellant’s mother was acceding to the extortion by the payment of money.

   [28] [2015] FCAFC 175

   [29] [2015] FCAFC 175 at [56]

5. Logan J, who delivered a separate judgment, was in “general agreement” with the judgment of Robertson and Kerr JJ,[30] but his Honour wished “to add some further reasons” why the appeal should be upheld.[31] Logan J considered “perverse” the Tribunal’s reasoning that there was no real chance of abduction on the applicant’s returning to Sri Lanka because the applicant’s mother would continue to make the payments demanded.[32] The reason his Honour considered this to be perverse, however, was not because the applicant’s mother’s continuing submission to the extortion would not have prevented the applicant’s threatened abduction; it was because his Honour was of the view the Tribunal ignored the reason why the authorities extorted money from the applicant’s mother. That is apparent in the following passage from his Honour’s reasons (emphasis in original):[33]

   In this case, to conclude that the “overriding aim” of the CID officers was “simply to extort money from [the appellant’s] mother”… was to fail to grapple with why the mother was a target for extortion at all. Yet that is what the claim as made by the appellant required. Further, elsewhere in its reasons…the Tribunal accepted, “that family members of Tamils suspected of supporting the LTTE may be in need of international protection”. The perversity or want of logicality or rationality in the Tribunal’s reasons lies in its discounting of any need for that protection on the basis of its acceptance that the claimed extortion will continue if the appellant returns to Sri Lanka. Had the Tribunal grappled with why the mother had been targeted for extortion, this perversity might have been avoided.

   [30] [2015] FCAFC 175 at [2]

   [31] [2015] FCAFC 175 at [3]

   [32] [2015] FCAFC 175 at [14]

   [33] [2015] FCAFC 175 at [16]

1. Logan J further found[34] that the Tribunal engaged in the impermissible reasoning McHugh J identified in S395/2002 v Minister for Immigration and Multicultural Affairs (emphasis in original):[35]

   ... The fallacy underlying this approach is the assumption that the conduct of the applicant is uninfluenced by the conduct of the persecutor and that the relevant persecutory conduct is the harm that will be inflicted. In many — perhaps the majority of — cases, however, the applicant has acted in the way that he or she did only because of the threat of harm. In such cases, the well-founded fear of persecution held by the applicant is the fear that, unless that person acts to avoid the harmful conduct, he or she will suffer harm. It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct. To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider that issue properly.

   [34] [2015] FCAFC 175 at [17]

   [35] [2003] HCA 71; (2003) 216 CLR 473 at [43]

2. The reasoning of the Tribunal in SZTAP that Robertson and Kerr JJ found to be irrational and unreasonable is not analogous to the reasoning by which the Tribunal in the case before me concluded the applicant had the capacity to meet the extortion without affecting his capacity to earn a livelihood. As I have already concluded, the Tribunal’s conclusion was based on the applicant’s family living and working in the UAE, the applicant’s being educated and experienced, and his ability to have accessed funds to travel extensively internationally.[36] These are matters on which it was reasonably open to the Tribunal to rely to conclude the applicant had the capacity to meet “low level extortion”.

   [36] CB581-582, [63]

3. Logan J’s judgment in SZTAP, however, raises different, and more difficult, considerations. His Honour appears to have been of the opinion that where the alleged persecution is extortion, and the extortion has occurred or may occur because or partly because of the applicant’s actual or perceived race, religion, nationality, membership of a particular social group or political opinion, the Tribunal is to disregard the applicant’s complying with the extortion; and the Tribunal is to assess whether the applicant was or may be persecuted by reference to the harm the applicant may have or may suffer if the applicant does not satisfy the extortion. That opinion, in turn, appears to be based on the view that S395 precludes the Tribunal from taking into account steps an applicant has taken or will take to avoid persecution.

4. With respect, if this were the view on which his Honour relied, it would fall outside the scope of S359. As the High Court explained in Minister for Immigration and Border Protection v SZSCA:[37]

   The essential reasoning in S395 was that the Tribunal had diverted itself from its task of determining whether there would be a real chance that the applicants would be persecuted if they returned to Bangladesh, by focusing on an assumption about how the risk of persecution might be avoided. Gummow and Hayne JJ said that the enquiry was what might happen if the applicants returned, not whether adverse consequences could be avoided. It followed that the issue to which the correct enquiry was directed – whether the fear of persecution was well founded – had not been addressed.

   In the present case the Tribunal did not fall into the error identified in S395. The critical aspect of the reasoning of the Tribunal in the present case was its finding that the respondent would not face a real chance of persecution if he remained in Kabul and did not travel on the roads between Kabul and Jaghori. The Tribunal found that he would suffer a real chance of harm for a Convention reason if he carried construction material in another area, but that he was safe in Kabul. In contrast to S395, therefore, the Tribunal did not divert itself from the question of whether the respondent would face a real chance of persecution if he returned to Afghanistan.

   [37] [2014] HCA 45; (2014) 254 CLR 317 at [17]-[18] (footnote omitted)

5. The Tribunal in the case before me did not divert itself from determining whether the applicant would be persecuted if he were to be sent to Pakistan. The Tribunal considered what would happen to the applicant if he were to be sent to Pakistan. The Tribunal answered that question by concluding the applicant, if confronted with extortion, would seek and have the capacity to meet that extortion; and by further concluding that this would not amount to serious harm. The Tribunal did not impermissibly ask what the applicant could do to avoid persecution.

6. Ground 2(i), therefore, fails.

Ground 1(ii)

1. The third ground on which the applicant relies is directed to the Tribunal’s conclusion that, if the applicant were to return to the UAE, there is a possibility the applicant would be detained, not for any Convention reason, but because the applicant would be in the UAE illegally without proper documentation. The ground is as follows:

   The Tribunal erred by finding that any such detention of the Applicant . . . would not be for reason of nationality; the Applicant being illegally in the United Nations Arab Emirates, without proper documentation, should he be returned there, as posited by the Tribunal, would arise because he is stateless and therefore not a national of the United Arab Emirates.

2. The applicant, in his written submission, repeats this ground, and adds that the serious harm the applicant feared “would therefore be for reason of nationality”.[38] Mr Dobbie repeated this submission in oral address.

   [38] Applicant’s Outline of Submissions, [14]

3. The Minister submits this ground goes no further than expressing disagreement with what the Minister submits is a finding of fact. This mischaracterises the applicant’s ground. As I understand it, by this ground the applicant submits that a person’s being detained because he is not a national of a country necessarily implies that the person is detained because of his nationality.

4. Whether or not that is so depends on the true construction of the definition of refugee in Article 1A(2) of the Refugees Convention.[39] Under that definition, a “refugee” is any person who:

   . . . owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

   [39] 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees

5. For a person to have a well-founded fear of persecution for reason of nationality, the person must have or be perceived to have a particular nationality (or, perhaps, be stateless[40]), and it must be because of that nationality (or statelessness) or perceived nationality (or statelessness), that the person has a well-founded fear of persecution. It is not the case, therefore, that a person who is detained in a particular country for the reason that the person does not have documentation that demonstrates that the person is a national of that country is necessarily detained because of the person’s nationality (or statelessness). If it were otherwise, the detention of unlawful immigrants by any country would per se constitute persecution within the meaning of the Refugees Convention. That cannot be right.

   [40] See Hathaway, J. C., and Foster, M., The Law of Refugee Status, 2^nd ed., Cambridge University Press, 2014 at page 397

6. Ground 1(ii), therefore, also fails.

Disposition

1. I propose to order that the application be dismissed. I will also order that the Administrative Appeals Tribunal be substituted for the Tribunal as the second respondent.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 31 March 2017