SZVUB v Minister for Immigration
[2019] FCCA 123
•25 January 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVUB & ORS v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 123 |
| Catchwords: MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal. ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal failed to alert the applicants to issues determinative of the review as required by s.425 of the Migration Act 1958, failed to consider all the integers of the applicants’ claims or to consider all their claims on a cumulative basis and reached conclusions which were unreasonable for being illogical. |
| Legislation: Migration Act 1958, ss.36, 414, 420, 425, 474 |
| Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593 |
| First Applicant: | SZVUB |
| Second Applicant: | SZVUC |
| Third Applicant: | SZVUD |
| Fourth Applicant: | SZVUE |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3393 of 2014 |
| Judgment of: | Judge Cameron |
| Hearing date: | 14 August 2017 |
| Date of Last Submission: | 14 August 2017 |
| Delivered at: | Sydney |
| Delivered on: | 25 January 2019 |
REPRESENTATION
| Counsel for the Applicants: | Ms B. Tronson & Mr M. Nesbeth |
| Solicitors for the Applicants: | Kinslor Prince Lawyers |
| Counsel for the First Respondent: | Mr D. Hume |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3393 of 2014
| SZVUB |
First Applicant
| SZVUC |
Second Applicant
| SZVUD |
Third Applicant
| SZVUE |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The first and second applicants are husband and wife respectively, and the third and fourth applicants are their children. On 18 June 2013 the applicants applied to what is now the Department of Home Affairs for protection visas. The first and second applicants each made claims of their own, while the third and fourth applicants were included in their parents’ application as members of their family unit. On 31 January 2014 the applicants’ application was refused by a delegate of the first respondent (“Minister”). The applicants then applied to the Refugee Review Tribunal (“Tribunal”), a predecessor of the second respondent, for a review of that departmental decision. They were unsuccessful before the Tribunal and have 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 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
BACKGROUND FACTS
Claims before the Department
The first applicant’s claims for protection were made in a statement lodged with his protection visa application and at an interview with the delegate on 31 October 2013. Relevantly, he claimed that:
a)as a Shia Muslim living in Pakistan, he lived in constant fear for his life;
b)in 1988 his family opened a “medical store” and a video store in Karachi. Because it was a Shia-owned business, they received constant threats from extreme Deobandis, Sipah-E-Saheba, Lashker-Janghvi and other offshoots of Al Qaeda and the Taliban;
c)the medical store also operated as a dispensary for free medicines for low-income people in the district;
d)his family was also targeted because they were active in the community. They often hosted religious gatherings and lectures at their home, and his brother and mother were the custodians of a local mosque and imambargah;
e)in 2002 the Lashker-Janghvi attacked the family’s medical store, killing the first applicant’s cousin and wounding his brother. After further attacks were threatened, his family closed the video store for a few months and obtained police protection for the medical store;
f)the medical store was the only shop still operated by Shia Muslims in the street, which made it and those working in it more vulnerable to attack by Sunni militants;
g)the second applicant, whom he married in 2007, was a prominent Shia scholar who gave lectures on women’s rights and the importance of education for young children. As a result of her work, he and the second applicant received constant death threats from the Lashker-Janghvi;
h)(shortly before his arrival in Australia) security officials advised the first applicant’s family that they had captured two terrorists from Lashker-Janghvi and had obtained from them a “hit list” of Shia in the area. His family were included in the list;
i)in order to escape harm, his brother organised for him to come to Australia as a student. He arrived in December 2010;
j)on 1 October 2011 Lashker-Janghvi attacked the medical store again, throwing grenades and firing gunshots into the store. As before, the police agreed to provide the store with protection but this ceased after the officers themselves were threatened;
k)since the attack in 2011, his family had been subjected to unabated violence and threats;
l)in 2013 his brother-in-law and his cousin’s husband were killed in separate targeted attacks by Lashker-Janghvi; and
m)the Taliban and Lashker-Janghvi targeted educated Shias and his study in Australia put him in further danger.
The second applicant made the following claims for protection in a statement attached to her application:
a)prior to her marriage in 2007, she had excelled in religious studies and had dedicated her time to promoting women’s education and civil rights for Shias through lectures;
b)she became a well-known scholar in the community and her views on religion and women’s education made her a target for terrorist groups such as the Taliban; and
c)after the birth of her son (in 2009), she started receiving threats that he would be abducted. She decided to reduce her work in the community but the threats against her family continued unabated.
The applicants provided various supporting documentation including:
a)“first information reports” in relation to the 2002 and 2011 attacks on the medical store;
b)a first information report in relation to a further incident in March 2012 when the first applicant’s brother and cousin were pursued by men who tried to shoot them; and
c)media reports documenting the attacks on the applicants’ family members.
Additional claims before the Tribunal
In written submissions received by the Tribunal on 23 October 2014, the first applicant claimed that on 28 February 2014 his brother had been attacked outside the medical store by three men. A first information report in relation to this attack was also provided.
At the Tribunal hearing on 28 October 2014 the first and second applicants further claimed that when they first arrived in Australia in 2010 and 2012 respectively, they had not intended to remain permanently. The first applicant claimed that he had intended to return to Pakistan upon the completion of his studies in Australia to expand his family’s business. They claimed that they decided to remain in Australia permanently and apply for protection only after the first applicant’s brother-in-law was killed in 2013. They chose not to enquire about or seek protection in Australia prior to this in the belief that the situation in Pakistan would improve.
The Tribunal’s decision and reasons
After discussing the claims made by the applicants and the evidence before it, the Tribunal found that it was not satisfied that the applicants were persons 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 reasons:
a)in the Tribunal’s view, the “significant delay” on the part of the first applicant, and to a lesser extent the second applicant, in seeking protection in Australia undermined their claims to have been persistently and continuously threatened in Pakistan. Their explanation for the delay (i.e. they hoped that the situation would improve) was difficult for the Tribunal to accept, given the background of attacks and constant threats alleged. Consequently, while the Tribunal accepted that threats had been made, it did not accept that they had been made continuously from the period prior to the first attack in 2002 to “the present time”. The Tribunal found that the first and second applicants had embellished their claims in this respect;
b)the Tribunal found that the risk that the applicants would suffer serious harm in Pakistan on the basis of their religion was remote, noting that:
i)although the first and second applicants had undertaken tertiary studies, the Tribunal did not accept that this placed them in the same category as “prominent Shia professionals” who, according to country information, had been the victims of targeted killings; and
ii)the Tribunal accepted that family members were custodians of imambargahs and that the first and second applicants would participate in Shia processions and gatherings. However, attacks on Shia processions were isolated and sporadic and casualty rates were minor when considered in the context of the size of the Shia population in Karachi;
c)the Tribunal accepted that the first applicant’s family owned a medical store in Pakistan which was attacked by Sunni extremists in 2001 (referred to during the Tribunal hearing), 2002, 2011 and 2014. However, the Tribunal found that these incidents (including threats made at various times) amounted to, at best, intimidation and harassment, noting that:
i)the attacks were isolated and sporadic over a long period of time;
ii)the first and second applicants were never harmed in these attacks;
iii)the shop remained opened throughout this period. In the Tribunal’s view, if the perpetrators had wanted the family to close down the business, they would have been able to achieve that outcome;
iv)the Tribunal expected that if the perpetrators wanted to harm the family for reasons of their religion, they would have taken much stronger action against them than these sporadic attacks;
v)no immediate family member had been killed; and
vi)despite these attacks and threats, the first applicant did not perceive danger to his life, as demonstrated by his delay in seeking protection and his willingness to return to Pakistan for a visit in 2011;
d)the Tribunal also accepted that various of the first applicant’s relatives were killed in 2013. However, it was not satisfied that his relatives were killed solely because of their Shia religion as, firstly, this was not supported by country information and, secondly, the Tribunal had no reliable independent evidence as to the reasons for the killings. While the Tribunal acknowledged the assertions made in the media articles and first information reports that these incidents were sectarian in nature, it did not find those assertions persuasive;
e)the Tribunal accepted that the second applicant reduced her religious activities after she received threats but did not accept that this amounted to serious harm. In this connection, the Tribunal noted that the second applicant remained in Pakistan for a number of years after the threats were made and did not concern herself with applying for protection until early 2013; and
f)in light of its various findings, the Tribunal concluded that the risk that the applicants would suffer serious harm in Karachi was remote.
PROCEEDINGS IN THIS COURT
The applicants alleged the following in their amended application:
1. The tribunal breached section 425(1) of the Migration Act 1958.
Particulars
a)The tribunal did not inform the applicant that a reason it may find that threats against his family were less frequent than he claimed [was] because there was a delay between his arrival in Australia and application for a protection visa.
2.In relation to the manner in which the Tribunal dealt with the applicants’ claim as a whole, the Tribunal breached its obligation to conduct a review pursuant to section 414 of the Act in that it failed to consider one or more integer of the applicants’ claim.
Particulars
a)Each of the following was an integer of the applicants’ claims to be eligible for a protection visa:
i. the applicants and their extended family were Shias;
ii. the first applicant’s family and extended family operated a business which was one of only a few Shia businesses, in a part of Karachi which had embedded Taleban elements;
iii. the first applicant, his family and extended family worked in the medical industry;
iv. the first applicant, his family and extended family were medical workers;
v. the first applicant, his family and extended family (or the first applicant and his brother) did charity work by dispensing free medicine to poor Shias in the local area;
vi. members of the first applicant’s family and extended family were custodians of a Mosque and an Imambargah;
vii. the first applicant’s family and extended family host important Shia gatherings;
viii. the second applicant gave lectures to other women;
ix. a combination of any of the above factors, considered cumulatively.
b)In support of their claims, the applicants gave evidence of the integers set out at (a) and the following additional facts:
i. there were attacks on the first applicant’s family’s medicine shop in 2001, 2002, 2011 and 2014;
ii. three members of the applicants’ family and extended family were killed in 2013;
iii. the first applicant’s younger brother was attacked by men on motorcycles who attacked him in March 2012;
iv. that the attacks referred to at (i) to (iii) inclusive were connected with the religion of the applicants and their families and their position in the community;
v. security officials had advised the first applicant’s family that the family was on a list of targets of Lashker-Janghvi;
vi. a number of additional threats concerning the medicine shop were made, in writing and by telephone, directed at the first applicant’s family and extended family;
vii. a number of additional threats concerning the second applicant's lectures were made in writing directed at the second applicant;
viii. the second applicant only started receiving threats after she married the first applicant;
ix. as a response to the attacks and the threats, the first applicant’s family and extended family undertook precautions, including making extensive fortifications to the front of the shop and obtaining the assistance of the police to guard the store.
c)The Tribunal accepted the facts underlying the claims set out at (a)(i), (iii), (iv), (vi) (at least as it related to an Imambargah) and (viii) at least as it related to the second applicant’s lectures to other women on matters of religion) and the evidence set out at (b)(i)-(iii) and (v), as well as part of the evidence set out at (b)(vi) (only to the extent those threats were made reasonably contemporaneously with the physical attacks on the shop) and (vii) (only to the extent those threats were made for a brief period after the first and second applicants married).
d)As a consequence of the combined conclusions referred to at (c), the Tribunal was obliged to consider whether those matters, considered cumulatively, were such that there was a real chance that the applicants (or one of them) would suffer serious harm if they returned to Karachi. The Tribunal failed to consider this cumulative claim and so failed to consider an integer of the applicants’ claims.
e)Further or in the alternative, the Tribunal failed to consider one or more of the integers described at (a)(ii), (v) and (vii) and, as a consequence:
i. for that reason, failed to consider one or more integers of the applicants’ claims; and/or
ii. for that reasons, failed to include those factors in any cumulative consideration of the applicants’ claims and so constructively failed to consider the applicants’ claims, taken cumulatively, and thus failed to consider an integer of the applicants’ claims.
3.In the alternative to Ground 2, the Tribunal breached section 425(1) of the Act.
Particulars
a)The applicants repeat particulars (a) and (b) of Ground 2.
b) The delegate accepted:
i. the applicants’ claims to fear persecution based on a cumulative consideration of the factors set out at particular (a)(i)-(vii) to Ground 2; and
ii. the evidence of the facts set out at particular (b) to Ground 2 (with the exception of (vii) and (viii)).
c) If it is accepted that, contrary to [the] applicants’ claim in Ground 2, the Tribunal did consider the applicants’ claims cumulatively, it must follow that:
iii. the Tribunal rejected the applicants’ cumulative claim; and so
iv. the applicants’ cumulative claim was thus an issue the Tribunal considered dispositive which the delegate did not; and so
v. the applicants' cumulative claim was an issue arising in relation to the decision under review.
d) As a consequence of (c), the Tribunal was obliged to identify and/or put the applicants on notice that it considered their cumulative claim to be dispositive.
e) The Tribunal did not comply with the obligation described at (d).
f) Further or in the alternative to (c) to (e) inclusive, if it is accepted that, contrary to [the] applicants’ claim in Ground 2, the Tribunal did consider any one or more of one or more of the integers described at particular (a)(ii), (v) and (vii) to Ground 2, it must follow that, in respect of each such integer the Tribunal considered:
vi. the Tribunal rejected that integer; and so
vii. that integer was thus an issue the Tribunal considered dispositive which the delegate did not; and so
viii. that integer was an issue arising in relation to the decision under review.
g) As a consequence of (f), the Tribunal was obliged to identify and/or put the applicants on notice that it considered each such integer to be dispositive.
h) The Tribunal did not comply with the obligation described at (g).
4. Further or in the alternative to Grounds 2 and 3, the Tribunal’s decision was legally unreasonable and/or illogical.
Particulars
a) The applicants repeat particulars (a), (b) and (c) of Ground 2.
b) In assessing the applicants’ risk of harm, the Tribunal placed primary reliance on the evidence (including statistical evidence) of the risk of harm faced by Shias in Karachi generally.
c) Having regard to the Tribunal’s acceptance of the matters set out at particular (c) of Ground 2 and to the evidence given by the applicants generally, the Tribunal’s reliance on the evidence (including statistical evidence) of the risk of harm faced by Shias in Karachi generally was legally unreasonable and/or illogical.
5. In relation to the manner in which the Tribunal dealt with the applicants’ claim as it related to the applicants’ increased risk as a consequence of the first applicants’ family’s medicine shop, the Tribunal breached its obligation to conduct a review pursuant to section 414 of the Act in that it failed to consider an integer of the applicants' claim.
Particulars
a) It was an integer of the applicants’ claims that the risk of harm they faced as Shias was increased by virtue of one or both of the following:
i. the fact that [the] first applicant, his family and/or extended family were, or were perceived as, medical workers or workers in the medical industry;
ii. the actions of the first applicant, his family and extended family (or the first applicant and his brother) in dispensing free medicine to poor Shias in the local area.
b) The Tribunal failed to consider the increased risk of harm outlined at (a) on one or both of the bases specified therein and thus failed to consider an integer of the applicants’ claim.
6. In the alternative to Ground 5, in relation to the manner in which the Tribunal dealt with the applicants’ claim as it related to the applicants’ increased risk as a consequence of the first applicants’ family’s medicine shop, the Tribunal breached section 425(1) of the Act.
Particulars
a) The applicants repeat particular (a) of Ground 5.
b) The delegate accepted the claim set out at particular (a) of Ground 5 on both bases specified therein.
c) If it is accepted that, contrary to applicants’ claim in Ground 5, the Tribunal did consider the applicants’ increased risk of harm as outlined at particular (a) of that ground, it must follow that:
i. the Tribunal rejected the applicants’ claim that they faced an increased risk of harm in either or both respects specified therein; and so
ii. the question of the applicants’ increased risk of harm was thus an issue the Tribunal considered dispositive which the delegate did not; and so
iii. the question of the applicants’ increased risk of harm was an issue arising in relation to the decision under review.
d) As a consequence of (c), the Tribunal was obliged to identify and/or put the applicants on notice that it considered their claim as to their increased risk of harm to be dispositive.
e) The Tribunal did not comply with the obligation described at (d).
Ground 1 – breach of s.425(1) regarding delay and threats
The applicants argued in connection with the first ground of the amended application that two matters which had not been in issue before the delegate had been determinative of their Tribunal review but, notwithstanding their significance, they had not been flagged to them pursuant to s.425(1) of the Act as issues which they had to address. Section 425(1) provides:
425 Tribunal must invite applicant to appear
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
The matters were said to have been:
a)the “continued persistent threats” from around April 2002 until the Tribunal hearing; and
b)the applicants’ supposed delay in applying for protection, on the basis that the Tribunal considered that this reflected poorly on their credibility.
The applicants conceded that the Tribunal had asked the first and second applicants some questions about the timing of the visa application but submitted that:
… those questions were insufficient to “challenge” the applicants’ evidence, or to “reveal[] to [them] that [questions of delay and the threats] were live issues” …
Thus the Tribunal breached its obligation pursuant to s 425(1) of the Migration Act 1958 (Act) by failing to put the applicants, or either of them, on notice that one or both of the questions of supposed “delay” or the threats made concerning the medicines shop were “central and determinative questions”.
Discussion
The applicants’ characterisation of the circumstances relevant to this ground emphasises one aspect of their claims which was not accepted on credit grounds. However, the issue of credit had a wide significance and it is artificial to single out only one part of the applicants’ Tribunal case and say that it was not identified as being in issue for reasons of credit.
The Tribunal’s opening statement to the applicants, recorded at page 3 of the transcript of the Tribunal hearing, made it clear that their credibility was relevant to all aspects of their claims. The Tribunal’s concern regarding the credibility of the applicants’ accounts was made manifest in its subsequent questioning of the first applicant concerning what had happened in Pakistan and why, given all that had happened, he had not applied for protection earlier than he did. The Tribunal made it plain that it found the delay difficult to understand:
Wouldn’t that make you think it’s pointless thinking you can go back to Pakistan and you [sic] better get some advice about how you could stay here permanently so that you can get protection?
The first applicant’s reason for the delay was that it was “not a small decision” and required time. The second applicant said the same thing and the applicants’ representative made a submission to the Tribunal to the same effect. Plainly the applicants knew that the delay was a material issue and there is no reason to conclude that they did not appreciate that it was relevant to all aspects of their claims, rather than just a cohort of some of them which did not include the very events, raised at the hearing, which invited the Tribunal’s express scepticism quoted above.
Ground 2 – breach of s.414 regarding various integers and cumulative claim
The second ground of the amended application alleged that the Tribunal fell into jurisdictional error for one or more of the following reasons:
a)it failed to consider the applicants’ cumulative claim even on the basis of the integers it accepted; and/or
b)it failed to consider particular integers of the applicants’ case; and/or
c)its failure to consider particular integers of the applicants’ case led to a failure (or further failure) to consider the applicants’ cumulative claim.
In support of those allegations the applicants alleged that the Tribunal accepted facts underlying the following integers of their claims:
a)they and their extended family were Shias;
b)the first applicant, his family and extended family worked in the medical industry;
c)the first applicant, his family and extended family were medical workers;
d)members of the first applicant’s family and extended family were custodians of an imambargah; and
e)the second applicant gave lectures to other women on matters of religion.
They also alleged that the Tribunal had accepted their evidence that:
a)there had been attacks on the first applicant’s family’s medical store in 2001, 2002, 2011 and 2014;
b)three members of the applicants’ family and extended family were killed in 2013;
c)the first applicant’s younger brother was attacked in March 2012 by men on motorcycles;
d)security officials had advised the first applicant’s family that the family was on a Lashker-Janghvi list of targets;
e)reasonably contemporaneously with the physical attacks on the shop, a number of additional threats concerning the medical store were made, in writing and by telephone, directed at the first applicant’s family and extended family; and
f)for a brief period after the first and second applicants married, a number of additional treats concerning the second applicant’s lectures were made in writing directed at the second applicant.
The principal contention of this ground of the amended application was that the Tribunal erroneously failed to consider whether those matters, considered cumulatively, were such that there was a real chance that the applicants (or one of them) would suffer serious harm if they returned to Karachi.
In support of that contention the applicants submitted that:
Unusually, the Tribunal did not state expressly that it had considered the applicants’ claims cumulatively. This failure gives rise to an inference that it did not do so: WAEE [v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593], 604-605 [47]. Consideration of a cumulative claim cannot, by its very nature, be “subsumed in findings of greater generality” (ibid), particularly as the applicants’ argument concerning the cumulative claim is based on facts which were not rejected by the Tribunal. (Emphasis included)
The applicants also argued that the Tribunal’s reasons were ambiguous, unclear and confusing and so it was questionable whether they were comprehensive. It was submitted that, given those deficiencies and the absence of any express reference to the cumulative claim, it could not be said that the cumulative claim had been identified at some point.
The applicants’ secondary contention was that the Tribunal erroneously failed to consider their allegations that:
a)the first applicant’s family and extended family operated a business which was one of only a few Shia businesses, in a part of Karachi which had embedded Taliban elements;
b)the first applicant, his family and extended family (or the first applicant and his brother) did charity work by dispensing free medicine to poor Shias in the local area; and
c)the first applicant’s family and extended family hosted important Shia gatherings;
which they said were integers of their claims. They also contended that because those matters had not been considered individually they were not part of a cumulative consideration of relevant matters and so the Tribunal had also erred in that respect.
The applicants submitted in relation to those latter contentions that:
a)the Tribunal did not refer to this issue at all;
b)this issue was referred to but no finding was made; and
c)the Tribunal referred to and apparently accepted evidence that “[t]he family were generally involved in organising religious ceremonies held at” imambargahs but that was a different claim.
Discussion
It can be accepted that the Tribunal was obliged to consider all the integers of the applicants’ claims: Htun v Minister for Immigration & Multicultural Affairs (2001) 233 FCR 136 at 152 [42]. It was also obliged to not limit its consideration to the applicants’ individual claims and their integers but to consider them as a whole as well: MZWPD v Minister for Immigration & Multicultural & Ethnic Affairs [2006] FCA 1095 at [69].
First contention – cumulative claim
The significance of the applicants’ argument that the Tribunal’s reasons were ambiguous, unclear and confusing was so they could argue the possibility that those reasons were therefore not comprehensive and thus did not, despite, their length and ostensible thoroughness, represent a consideration of all of their claims. They submitted that as the Tribunal’s reasons were ambiguous, unclear and confusing, it could not be concluded that it had considered their claims cumulatively as well as individually.
The applicants argued that the alleged ambiguity and lack of clarity was particularly evidenced in paragraphs where the Tribunal referred to earlier parts of its reasons and that para.32 was a particular example of this. The Court was not taken to any other example. In para.32 of its reasons the Tribunal said:
The Tribunal has acknowledged the various facets of his and his wife’s personal circumstances, but, for the reasons given above, finds that the risk of them suffering serious harm, notwithstanding their circumstances, is remote. There is no need for the Tribunal to determine whether the applicant’s immediate or extended family could be considered as a particular social group because the Tribunal is satisfied that the risk of him suffering serious harm due to past incidents of harm to family is remote. That finding is reached in view of the Tribunal’s overall assessment of the information he and his wife have advanced about themselves as to why they claim to be at risk.
There seems to me to be nothing ambiguous or unclear about para.32. Amongst other things it is, as the applicants acknowledged, a summary of earlier findings that the matters raised by the applicants did not satisfy the Tribunal that they faced a real chance of Convention-related persecution were they to return to Pakistan. As the applicants did not seek to demonstrate ambiguity or lack of clarity in any other part of the Tribunal’s reasons for decision, I am not persuaded that those reasons were deficient in that way. There is therefore no basis to conclude on the basis advanced by the applicants a lack of comprehensiveness on the Tribunal’s part.
Further, I find, contrary to the applicants’ submissions, that para.32 does represent a cumulative consideration of the applicants’ individual claims. No other reasonable construction can be placed on its words
… in view of the Tribunal’s overall assessment of the information …
which follows a number of paragraphs in which individual aspects of the applicants claims are considered in detail. Moreover, those words appear in the context of a summary dismissal of the particular social group claim for the reason that, when the applicants’ claims were considered “overall”, there would be no material risk to them in Pakistan even if they were members of the postulated group. The result of a cumulative consideration enabled that claim to be dismissed in that way. Certainly this was not an example of the error seen in MZWPD at [72]-[74].
The fact that the Tribunal did not incant that it had considered the applicants’ claims cumulatively does not necessarily mean that it did not. In this case, I find that the words the Tribunal used and the substance of its reasoning in para.32 of the decision record indicates that that is exactly what it was doing there. Paragraph 41 of its reasons dealing with complementary protection is another example of this.
Second contention – individual “integers”
Contrary to the applicants’ submissions, the Tribunal did consider the risk they faced arising from attacks on the family’s medical store. Given the nature of its reasoning it was not necessary for it to address expressly the two asserted integers and, given the factual simplicity of the applicants’ claims and the Tribunal’s summary rehearsal of them at paras.8-13 of its reasons, I am not persuaded it failed to consider them.
Noting that the attacks were sporadic and isolated, that the first and second applicants had not been harmed and that no close relative had been killed as result of them, the Tribunal concluded that the first applicant, and by implication the other applicants through him, did not face a risk of serious harm as a consequence of those attacks which it described as harassment. Moreover, and with specific significance for the first two asserted integers, the Tribunal did not find that the attacks were for a Convention reason, saying that “the essential and significant reason for these attacks [was] difficult to deduce given the multi-faceted nature of violence in Karachi”.
The final argument in connection with this ground concerned the asserted integer of claim that:
… the first applicant’s family and extended family host[ed] important Shia gatherings.
This asserted integer of claim was said to be discernible from the applicants’ evidence to the delegate that the first applicant’s wider family hosted religious gatherings condemning the violence against Shias in Pakistan and calling for justice and safety for all and was said to be distinguishable from the first applicant’s evidence to the Tribunal that his wider family organised ceremonies at an imambargah. The allegation was that the latter matter was considered but the former was not.
The Tribunal found at para.18 of its reasons that:
The Tribunal accepts that they are … Shias and were involved with their religion as they have claimed.
The width of the Tribunal’s expression in that statement satisfies me that the Tribunal understood and had regard to the applicants’ various claims on this topic. It demonstrates a sufficient engagement with the issues which the applicants raised regarding their religion and their related activities to satisfy the requirement that their involvement with religious gatherings, whether as organisers or hosts, be considered. Further, for the reasons given earlier, I find that para.32 of the decision record evidences a consideration of the applicants’ claims as a whole.
Ground 3 – breach of s.425 regarding various integers and cumulative claim
The third ground of the amended application alleged that if the Court found, contrary to the allegation in ground 2, that the Tribunal had indeed considered all the applicants’ claims on a cumulative basis then the “cumulative claim” was an issue which, although not dispositive before the delegate, had been dispositive before the Tribunal and so the Tribunal had been obliged to bring it to their attention pursuant to s.425(1) of the Act. The applicants alleged that the Tribunal failed to do that.
It was also alleged further or in the alternative that if the Court found, contrary to the allegation in ground 2, that the Tribunal had indeed considered one or more of the asserted integers of claim referred to above at [23], then any of those integers so considered was an issue dispositive of the review which the Tribunal had failed to bring to their attention as required by s.425(1) of the Act.
The applicants submitted that during their hearing before the Tribunal, the only references to the cumulative claim or the integers now ostensibly identified were as follows:
a.the Tribunal asked the first applicant about giving free medicine to poor Shi’as, but did not in any way challenge that evidence … ;
b. the Tribunal asked the first applicant about organising ceremonies at “the Imambargah” and, while the Tribunal also asked if there were “any other religious activities you would do”, that was in the context of questions about “the Imambargah”, and again, the first applicant’s evidence was not challenged in any other way … ;
c.the Tribunal asked the first applicant if “there were a lot of Sunni businesses” where the shop was but did not in any way challenge that evidence … ; and
das to the cumulative claim, in line with the Tribunal’s reasons (discussed above), its challenges focused on either the attempts to close down the shop or the link between religion specifically and the harm the subject of applicants’ claims … (References omitted)
It was submitted that these references were insufficient to put the applicants on notice that the Tribunal considered the cumulative claim or any of the asserted integers to be in issue and that instead the Tribunal’s questions suggested that it considered other matters to be in issue.
The applicants also submitted that it could be inferred from the affirmation of the decision to refuse them protection visas that the Tribunal “rejected” the asserted integers, but did so without first complying with s.425(1).
Discussion
There was no “cumulative claim” which engaged s.425(1). Rather, there was a number of claims which the Tribunal had to consider cumulatively to see whether, when everything was taken into account at one time, it could be said that the applicants’ alleged fear of persecution for a Convention reason was well-founded notwithstanding that no individual claim or integer of claim had been made out in a way which supported such a finding. Moreover, s.425(1) could not apply to a consideration which did no more than consider individual claims or claim integers which the applicants themselves had raised and put in issue, which, if the applicants’ arguments were to be accepted, would be the case here.
Further, it was not demonstrated, and it is not apparent, that any of the asserted integers set out above at [23] was an issue determinative of the review. It is to be recalled, as the applicants did in para.25(d) of their written submissions, that their evidence had been that the attacks on the first applicant’s family’s medical store in 2001, 2002, 2011 and 2014; the murders in 2013 of three members of the applicants’ family and extended family; and the March 2012 attack on the first applicant’s younger brother by men on motorcycles were connected with the religion of the applicants and their families. The applicants submitted that those attacks had also been linked to “their position in the community” but I do not accept that any such position was independent of their religion or had been claimed to be. Rather, to the extent that the applicants had a position in the community, that was, as was implicit in their claims, the consequence of their religious commitment and activities and no more than an aspect of their claims to fear persecution by reason of their religion. Consequently, the asserted integers were simply factual aspects of the applicants’ account which, because of the findings referred to above at [31]-[34], should be understood to have had no determinative significance for the review.
Moreover, it does not necessarily follow from the outcome of the review that the Tribunal rejected the factual allegations contained in the asserted integers. The Tribunal’s reasons for being unpersuaded by the applicants’ claims to fear persecution on religious grounds are not inconsistent with an acceptance of those allegations.
Ground 4 – unreasonableness
The fourth ground of the amended application alleged that the Tribunal’s reliance on evidence concerning the risk of harm faced by Shias in Karachi generally was illogical having regard to its acceptance of the facts alleged in ground 2(c) of the amended application, set out above at [19], and the applicants’ evidence generally. It was further asserted that the Tribunal erred in its use of statistical evidence.
The applicants submitted that the Tribunal’s primary focus in its reasons for decision was their religion and that it placed particular emphasis on the statistics concerning attacks on Shias in Karachi. They argued that in circumstances where the Tribunal had accepted a significant portion of their claims:
a.it was unreasonable to consider the link between the past events on which the applicants placed reliance or of which they gave evidence and religion in isolation from the broader circumstances of the applicants and their family; and/or
b.the Tribunal’s reliance on statistics in reaching its determination that the risk to the applicants was “remote” led to the omission of an “essential link in the chain of reasoning” (citing DZADQ v Minister for Immigration & Border Protection (2014) 143 ALD 659).
The applicants submitted that the Tribunal applied statistical evidence to reach illogical and unreasonable conclusions concerning the likelihood that individual Shias would be harmed by attacks on Shia processions and gathering places by reference to and in light of the large number of Shia Muslims in Karachi. The applicants acknowledged that the Tribunal had made other findings concerning their individual circumstances having regard to statistical material although they said that those findings did not really address their risk of Convention-related harm and were instead concerned with the attacks they had alleged were linked to their religion. They said that other parts of their claims were considered in isolation from the statistics to which the Tribunal had referred. They submitted:
Thus while it is the case that the Tribunal considered the applicants’ broader circumstances to some extent, it did not do so in conjunction with its consideration of the statistical evidence, nor did it consider how those broader circumstances might affect an assessment of the applicants’ claims based on religion. … It … omits the “essential link” between the statistical evidence concerning the likelihood of persecution based on religion and the applicants’ claims based on their broader circumstances, including religion as a central part, and so is unreasonable and/or illogical.
In this case, although the applicants’ written submissions pointed to what they argued were specific logical deficiencies in the Tribunal’s reasons, in addresses the Court was invited to look at the decision as a whole.
Discussion
The task of the Court, when it is alleged that a decision is legally unreasonable, is to ask whether the exercise of power by the decision-maker was beyond power for that reason. The improper use of statutory power may:
a)arise out of specific errors affecting a decision-making process;
b)be discernible in a decision because no reasonable person could have arrived at it; or
c)be discernible from the absence of an evident and intelligible justification for a decision:
Minister for Immigration & Border Protection v SZVFW (2018) 92 ALJR 713 at 732-733 [78]-[82] per Nettle and Gordon JJ.
However, as indicated by Allsop CJ in Minister for Immigration & Border Protection v Stretton (2016) 237 FCR 1 at 5-6 [9]-[11], the concept of legal unreasonableness cannot be minutely, precisely or comprehensively defined. Whether a decision is properly to be considered unreasonable by reference to its outcome, rather than because of specific errors which affect it, will be decided by reference to the terms, scope and policy of the relevant statute and the values drawn from the statute and the common law relevant to the decision. These include fundamental values that attend the proper exercise of power: a rejection of unfairness, of unreasonableness and of arbitrariness; equality; and the humanity and dignity of the individual. The weight and relevance of any relevant values will be approached by reference to the statutory source of the power in question. His Honour went on to state:
The task is not definitional, but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. (at 5-6 [11])
I do not agree that the Tribunal placed particular emphasis on statistics concerning attacks on Shia Muslims in Karachi. Relevantly for the applicants, the evidence in question concerned isolated attacks on Shias in locations or at times where large numbers of their co-religionists were considered likely to gather, such as religious processions and, on occasions, in Shia neighbourhoods or imambargahs. Contrary to the applicants’ submissions, there was no omission of an “essential link in the chain of reasoning” as there had been in DZADQ. Importantly, the evidence the Tribunal relied on was much more focussed than the evidence considered in DZADQ and it was reasonable to conclude from that evidence that the relevant risk of harm was remote because the attacks were isolated and sporadic and the likelihood that any of the applicants would be harmed in any way by those isolated and sporadic attacks was statistically small given that approximately six million Shias lived in Karachi, which had an overall population of over 18 million people.
As noted above, the applicants argued that the Tribunal did not test its appreciation of the statistics against all of the applicants’ claims and did not consider how the claims which were decided without reference to the statistics might have affected its findings on those claims which were decided having regard to the statistics. It was submitted that the Tribunal thereby omitted the “essential link” between the statistical evidence concerning the likelihood of persecution based on religion and the applicants’ claims based on their broader circumstances.
This argument introduces unnecessary complexity to the understanding of the Tribunal’s reasons. There was no missing “essential link” whose absence deprived the Tribunal’s relevant reasoning of adequate logic. The Tribunal’s findings on the claimed risk of serious harm were in two parts. The first concerned the applicants’ claims to fear persecution on religious grounds generally and the other was a consideration of the applicants’ allegations concerning particular events and why they might have occurred, or additional claims such as the one concerning the particular social group. The “statistical evidence” was considered in the first part and was largely not referred to in the second, except where its relevance was patent such as the second applicant’s claim to fear harm on religious grounds because of her lecturing activities, because it was plainly not relevant to do so.
I am not persuaded that the Tribunal’s reasons were unreasonable or illogical having regard to the applicable law, including s.420 which at the time provided:
420 Refugee Review Tribunal’s way of operating
(1)The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
(2)The Tribunal, in reviewing a decision:
(a)is not bound by technicalities, legal forms or rules of evidence; and
(b)must act according to substantial justice and the merits of the case.
Its decision record was plain and clear enough for the purpose and dealt adequately with the relevant issues.
Finally, it is not apparent that the Tribunal’s conclusion depended on anything other than its stated reasons which have now been considered in the context of the applicants’ allegations. In the circumstances, it would be otiose to consider the outcome of the review as a separate issue.
Ground 5 – breach of s.414 regarding increased risk
In the fifth ground of the amended application the applicants alleged that the Tribunal had failed to consider the following integers of their claims:
a)by reason of their association with the medical store, the first applicant, his family and/or extended family were, or were perceived as, medical workers or workers in the medical industry; and
b)the first applicant, his family and extended family (or the first applicant and his brother) dispensed free medicine to poor Shias in the local area.
It was said that these were circumstances which increased the risk of the applicants suffering serious harm in Pakistan and so had to be considered by the Tribunal.
The applicants submitted that the Tribunal made no express findings as to whether they faced an increased risk of harm due to the status (or perceived status) of the first applicant and his family as medical workers or workers in the medical industry, finding only that the first and second applicants “are not doctors and do not have the characteristics of the other people referred to in [certain] country information as being killed in Karachi”. It was further submitted that it could be inferred from this that the Tribunal did not consider whether the applicants’ circumstances arising out of their association with the medical store and the dispensing of free medication to poor Shias meant that they ought to be considered analogous to doctors in the sense of facing an increased risk of harm compared to other Shias.
Discussion
As the Minister observed in his written submissions, the applicants’ assertion of an increased risk of harm based on the participation of the first applicant (and his family) in the medical industry depended on the Tribunal first finding that persons in that industry faced a special risk of harm. The Tribunal did not make such a finding. As the factual basis for the asserted claim is absent, I am not persuaded that error is evident from the fact that the Tribunal did not address the asserted claim explicitly: ApplicantWAEE v Minister for Immigration & Multicultural & Indigenous Affairs at 604 [47].
Ground 6 – breach of s.425 regarding increased risk
The sixth ground of the amended application was an allegation in the alternative to the fifth ground and proceeded on the assumption that the Court had found that the integers of claim which ground 5 alleged had not been considered by the Tribunal had in fact been considered by it. This ground alleged that the question of the applicants’ increased risk of harm as a result of their association with the medical store was an issue arising in relation to the decision under review which had been accepted by the delegate with the consequence that if the Tribunal had indeed considered the question, but took a view different from the delegate’s thereby putting it in issue, it became a matter which had to be raised with the applicants pursuant to s.425(1) of the Act.
Discussion
The delegate did accept the existence of an increased risk of harm because the applicants were associated with the medical store but that appears to have been based on the fact that the shop was a Shia-run shop in a majority Sunni area in which “Taliban elements” were embedded rather than because it was a medical store. If that reading is correct then the significance of the shop being a medical store was always in issue.
However, if I am incorrect in that view, as the Minister noted the applicants were nevertheless aware that the risk of harm they faced, whether by reason of their status as Shias or their personal circumstances, including any asserted connection to the medical industry, was an issue arising in relation to the review. For instance, in their written submissions received by the Tribunal on 23 October 2014 they argued that they were at risk as medical workers because of their association with the medical store, a matter mentioned by the Tribunal at para.31 of its reasons.
There was therefore no relevant duty under s.425(1) of the Act which the Tribunal was obliged to discharge.
CONCLUSION
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 25 January 2019
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