WZAPY v Minister for Immigration
[2013] FMCA 97
•19 February 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WZAPY v MINISTER FOR IMMIGRATION & ANOR | [2013] FMCA 97 |
| MIGRATION – Refugee Review Tribunal affirms decision of delegate not to grant applicant a protection visa – Hazara Shia from Baluchistan Pakistan – whether RRT decision vitiated by jurisdictional error. |
| Migration Act 1958 (Cth), ss.91, 476 & 477 1951 Convention relating to the Status of Refugees and its 1967 Protocol, Article 1A(2) |
| Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 Craig v State of South Australia [1995] HCA 58 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 SZATV v Minister for Immigration & Citizenship & Anor [2007] HCA 40 Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 MZYLH v Minister for Immigration and Citizenship [2011] FMCA 888 Multicultural Affairs v Yusuf (2001) 206 CLR 323 |
| Applicant: | WZAPY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | PEG 338 of 2011 |
| Judgment of: | Lindsay FM |
| Hearing date: | 4 October 2012 |
| Date of Last Submission: | 4 October 2012 |
| Delivered at: | Adelaide by telephone |
| Delivered on: | 19 February 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hooker |
| Solicitors for the Applicant: | Scales Community Legal Centre |
| Counsel for the Respondents: | Ms Johnson |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That pursuant to s.477(2) of the Migration Act 1958 the time for filing of the application is extended to 18 November 2011.
That the application for judicial review filed on 18 November 2011 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 338 of 2011
| WZAPY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review pursuant to s.476 of the Migration Act 1958 (“the Act”) in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) of the 22 September 2011 which decision affirmed the decision of the delegate of the Minister not to grant the applicant a protection visa.
The decision of the Tribunal is a privative clause decision and accordingly the review will not succeed unless the applicant can demonstrate that the decision was vitiated by jurisdictional error. These matters were explicated in the context of the operation of the Act by the High Court in Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476. Jurisdictional error more generally has been explicated in a number of High Court decisions such as Craig v State of South Australia [1995] HCA 58.
The application was filed without the time limit referred to in s.477(1) of the Act. That section requires the application to be lodged within 35 days of the date of the migration decision. The date of the migration decision was 21 September 2011. The application for review was filed on 18 November 2011. The last day on which the application could have been filed within time was 26 October 2011. So the application was filed some 23 days out of time.
Section 477(2) of the Act provides that the Court may extend the 35 day period if an application for that order has been made in writing specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order and the Court is satisfied it is necessary in the interests of justice to make the order. The affidavit of the applicant filed on 18 November 2011 provided a rational and reasonable explanation as to how the delay arose.
The Minister opposed the application for an extension of time principally upon the basis that the review itself had no prospect of success and that being the case it could not be said to be in the interests of justice to allow the extension to be granted to promote a futile claim. That, of course, remains to be determined.
I propose to extend the time for the filing of the application to permit it to have been validly filed on 18 November 2011.
The applicant was born in Quetta City in Pakistan. Quetta is in Baluchistan Province. His parents migrated to Pakistan from Afghanistan. He is a Hazara and is a Shia Muslim.
His father was killed in 2003 during an attack upon a Shia Mosque in Quetta by Lashkar-e-Jhangvi, a Sunni terrorist group responsible for many recent atrocities in Pakistan against the Shia population. His father had been a member of the Shia Conference.
The applicant conducted his own printing press business in Quetta and his clients included non-governmental organisations such as Mercy Corp. As a member of the Shia Conference himself he printed materials for them also.
His brother died when the applicant was 17 years of age. He died in a car accident. This brother had also been a member of the Shia Conference. The applicant said that following the death of his brother he received a phone call from Lashkar-e-Jhangvi claiming to have killed the brother and telling him that he was next on their list. In the years 2004-2008 when he conducted his printing business in Quetta he received some 10-15 calls from Lashkar-e-Jhangvi threatening him because of the printing he did for the Shia Conference and for Christian organisations. The brother’s death occurred in 2006.
He also received a threatening note from Lashkar-e-Jhangvi.
In January 2008 and while returning from visiting customers of the business on his motorcycle people on the Sariab Road began shooting at him. He said that two days after the shooting he received a call from Lashkar-e-Jhangvi in which they claim they had shot at him and that they would kill him the next time.
Following the shooting incident he never returned to his printing business. He sold it later in 2008 and he travelled to the United Arab Emirates where he worked for an advertising company for approximately 18 months before travelling to Australia. He had visited the United Arab Emirates previously. His visa to travel to the United Arab Emirates has expired and he has no existing right to enter and reside there.
He says that he will be persecuted if he is forced to return to Pakistan by the Lashkar-e-Jhangvi. He will be persecuted because he is a Hazara and a Shia and because he has already been targeted by the Lashkar-e-Jhangvi.
The Tribunal considered a range of country information relating to the predicament of Hazara and Shia in Pakistan and the limited ability of the State authorities to control violence directed at them.
The Tribunal accepted parts of the applicant’s claims but rejected others.
It accepted his family background and his ethnicity and religion and that his father had been killed in a terrorist attack in 2003 and that he had operated a printing press in Quetta and that he and his brother had been involved with the Shia Conference. It accepted that his brother had been killed in a road accident in 2006 but did not accept that the Lashkar-e-Jhangvi was responsible for the brother’s death. It accepted that he had been shot at. However, the Tribunal rejected his claim to have been targeted by the Lashkar-e-Jhangvi. It did not accept that the Lashkar-e-Jhangvi threatened him. It did not accept that they claimed responsibility for the death of his brother or the shooting on the Sariab Road.
The Tribunal accepted, however, that the city of Quetta was dangerous for Hazara and Shia. On the basis of the country information considered by it it accepted that there had been an increasing number of attacks on Shia mosques and processions in that city and a significant number of targeted killings of Shia Hazara including people without a high religious profile. It also accepted that the security forces in Pakistan were unable to control the violence directed at Shia Hazara in Quetta and concluded that there is a real chance that the applicant would face serious harm on account of his religion and of his ethnicity if he were to return to Quetta in the reasonably foreseeable future.
The Tribunal then considered whether the applicant could relocate to another area of Pakistan where he would not face a real chance of persecution for a Convention reason and if he could whether it was reasonable in his particular circumstances for him to do so and concluded that there were other places in Pakistan where he would not be persecuted for a Convention reason including the cities of Karachi and Lahore and Multan. Karachi is in Sindh Province and the latter two cities are in the Punjab.
The Tribunal concluded that it was reasonable and practicable for the applicant to live and work elsewhere in Pakistan and accordingly was not satisfied that the applicant was a person to whom Australia owed protection obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
There are three grounds of review.
The first ground focuses on what is said to be the way in which the Tribunal failed to ask itself the correct questions in relation to the internal relocation principle. The internal relocation principle in the context of Article 1A(2) of the Refugees Convention was explicated by the Full Court of the Federal Court of Australia in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 and by the High Court in SZATV v Minister for Immigration & Citizenship & Anor [2007] HCA 40. Black CJ in Randhawa said this at [440]-[441]:
Although it is true that the Convention definition of refugee does not refer to parts or regions of a country, that provides no warrant for construing the definition so that it would give refugee status to those who, although having a well-founded fear of persecution in their home region, could nevertheless avail themselves of the real protection of their county of nationality elsewhere within that country. The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country. If it were otherwise, the anomalous situation would exist that the international community would be under an obligation to provide protection outside the borders of the country of nationality even though real protection could be found within those borders.
The relocation principle is not referred to specifically in the Convention nor in those sections of the Act which explicate the test for refugee status such as s.91S or s.91R but is, as discussed at [15] of SZATV, distilled from the text of the Convention definition.
In SZATV the Tribunal was dealing with a Ukrainian journalist who claimed to fear persecution because of his work as a journalist concerning corruption in local authorities in the Ukraine. The Tribunal accepted that he had suffered persecution in the past for his political opinions and thus for a Convention reason but went on to find that the persecution had been confined to a particular region of the Ukraine and that it was reasonable for him to relocate elsewhere in the Ukraine. In addition, the Tribunal considered that he could obtain work outside of journalism. The High Court described the Tribunal’s reasoning in the following way at [32]:
The effect of the Tribunal’s stance was that the appellant was expected to move elsewhere in Ukraine and live “discreetly” so as not to attract the adverse interest of the authorities in his new location, lest he be further persecuted by reason of his political opinions. By this reasoning the Tribunal sidestepped consideration of what might be reasonably expected of the appellant with respect to his “relocation” in Ukraine. It presents an error of law going to an essential task of the Tribunal. This was determination of whether the appellant’s fear of persecution was “well founded” in the Convention sense and thus for the purposes of s.36(2) of the Act.
The reference to “discreetly” in that passage picks up, of course, the gravamen of the decision of the High Court in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR at [473].
The Court in SZATV at [18] had already noted that the analysis required as to whether a fear was well founded involved an objective requirement to the examination of the facts not confined only to those facts which form the basis of the fear experienced by the applicant. The Court went on to say (at [24]) this about the submission of the Minister in that case that in internal relocation cases the task was of ascertaining whether it be reasonable, in the sense of practicable, for the appellant to relocate to a region of the country of origin where there is no appreciable risk of the persecution:
However, that does not mean that, without more the formulation by the Minister is sufficient and satisfactory. What is “reasonable”, in the sense of “practicable”, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality.
The appellant complains that the Tribunal misunderstood or misapplied the correct legal test because there was an absence of a thorough discussion of the applicant’s circumstances should he be required to relocate.
The complaint is made that the Tribunal should have done more than simply satisfy itself that a location “away from Quetta” or “outside of Quetta” was available to the applicant (these are the expressions the Tribunal uses at the relevant parts of the reasons, though of course it does mention Karachi, Lehore and Multan specifically). The applicant says that there has not been a considered assessment of the impact upon him of relocation within Pakistan in the way that is said to be required by SZATV.
The Tribunal at [17] notes the need for the fear of persecution for a Convention reason to be “well founded” and that this entails an objective requirement that the applicant holds such fear.
The assessment of the reasonableness and practicality of relocation is carried out in the context of the actual case made by the applicant.
The applicant’s personal experiences of persecution were confined, of course, to Quetta and its environs. His case did not involve assertions about any persecutory experiences elsewhere in Pakistan. The Tribunal’s consideration of the country information convinced it that the applicant’s experiences as a Shia Hazari in Quetta were not uncommon and that the position of such people throughout Baluchistan and North West Frontier Province was dangerous but the country information did not indicate the same level of risk in other parts of the country. The fact that the applicant did not believe that he was safe in other parts of Pakistan was noted as was the “grave security challenges” facing Pakistan (see [130]). The applicant did not put to the Tribunal (and the Tribunal did not discover itself) country information to suggest that the problems in Quetta and Baluchistan experienced by Shia Hazara were the same throughout Pakistan other than some information relating to an attack on Hazara people in Karachi in November 2010 which is discussed by the Tribunal at [136].
The country information informed the tribunal moreover, that there were significant Hazara communities elsewhere in the country and that included the three cities specifically noted by the Tribunal.
The Tribunal’s views about there not being a real risk of persecution in these other areas is allied to the Tribunal’s finding that the suggestion that the applicant is a Hazara specifically targeted for killing by Lashkar-e-Jhangvi to be “very far fetched”. The Tribunal did not accept that Lashkar-e-Jhangvi would target an individual with a profile of this applicant. This is consonant with a finding that the applicant is not at real risk of persecution in areas of Pakistan away from Quetta. At [140] – [141] the Tribunal then assesses the reasonableness and practicability of internal relocation in the context of the applicant’s specific family, language, work experience and travel history. But that assessment is made in the light of the finding that he is not at real risk of persecution outside of Quetta.
Finding as it did that he was not at real risk of persecution outside of Quetta the Tribunal was not obliged in my view to consider whether effective state protection was available to the applicant. I am unable to accept the characterisation of the way the Tribunal dealt with this issue as superficial, as submitted on behalf of the applicant. In my view it was as detailed an analysis as the case promoted by the applicant required. I am also unable to accept the submission that the ratio decidendi of SZATV was not followed. The internal relocation principle was dealt with on the basis of the applicant’s specific circumstances and with no assumptions being made about any modification of his way of life. His business background might be described as essentially commercial and the Tribunal has proceeded upon the basis that if he was to return to Pakistan it would continue to be so. In my view it was entitled to do that.
I am not satisfied that there has been a failure to ask the correct questions associated with the relocation issue and ground one is not made out.
Ground two relates to the same issue of relocation but alleges that the effect of five separate passages from the Tribunal’s reasons on the topic indicate that the conclusion reached on the issue of relocation was irrational, illogical and not based on inferences of fact supported by logical grounds.
The five instances involve:
a)The statement in [93] that the Tribunal had “looked but has not located information” (sic) about conditions for Hazaras in Pakistan outside of Quetta and that prompted the department to seek information from the Department of Foreign Affairs and Trade (“DFAT”) on the topic and that DFAT had been unable to produce any significant information.
b)The citing by the Tribunal of information which reported sectarian violence between Sunni and Shia in many parts of Pakistan outside of Baluchistan province ([85]).
c)The conclusions of the Tribunal in the key passage at [128] that the situation for Shia Hazara is different in parts of Pakistan other than Quetta or Baluchistan and that it is in Quetta and Baluchistan that Hazara face particular risk and that the risk of persecution outside of Quetta is not comparable to that same risk in Quetta.
d)The statement at [136] that “there is little or no information about Hazaras outside of Quetta”.
e)The conclusion at [138] that “there is not more than a remote chance that the applicant would face persecution as a Shia or Hazara if he returned to live in Pakistan away from Quetta”.
I should note, firstly, that the material cited at [85] focuses on the Sunni and Shia divide rather than on those Shia who are specifically Hazaras which is what is referred to at [93], so that I do not identify any tension between the matters referred to in a) and b) in the preceding paragraph.
Irrationality and illogicality certainly are grounds for judicial review but as Rares J points out in SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58 at [12] they are grounds that are distinct from an assertion that the Tribunal or decision maker made a wrong finding of fact. His Honour says:
Ordinarily, a decision maker will not make an error of law or a jurisdictional error simply by making a wrong finding of fact; City of Enfield v Development Assessment Commission [2000] HCA 5… After all the jurisdiction so exercised is to make findings of fact not to make findings of fact that are necessarily correct. However, if the fact wrongly found is a jurisdictional fact the decision will be amenable to judicial review. That is because the decision maker cannot create or negate the existence of his, her or its jurisdiction by an erroneous finding or supposition that the jurisdiction exists or does not exist…
In the next paragraph of that same decision his Honour, however, notes that this jurisdictional fact/non-jurisdictional fact distinction causes particular difficulties in dealing with the Migration Act because s.65(1) of the Act says that the Minster (or Tribunal) must grant a visa “if satisfied” of particular matters and must refuse to grant it if he or she is not so satisfied so that the Tribunal state of satisfaction itself is a jurisdictional fact. His Honour finds the “key” to reviewability of such decisions on grounds of irrationality or illogicality in those High Court decisions which have emphasised that Courts will interfere in such decision making only if the decision reached by the decision maker appears so unreasonable that no reasonable authority could properly have arrived at it (see [13]) of His Honour’s Judgment. This is the same view that MCKerracher J came to in the same decision of SZOOR though His Honour relies specifically upon the decision of the majority in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16. His Honour (at [84] of his judgment) cites the passage from the joint judgment of Crennan and Bell JJ at [135] of SZMDS:
Whilst there may be varieties of illogicality and irrationality a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision maker might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if a decision to which the decision maker came is simply not open on the evidence or there is no logical connection between the evidence and the inferences or conclusions drawn.
The fact that there was abundant country information about the risks of violence and persecution towards Hazara in Baluchistan but very little if any material about those risks to that same tribe in other parts of Pakistan (whatever the prevalence of Sunni and Shia tension throughout all of Pakistan) was something that the Tribunal was entitled to take into account and in my view does not disclose irrationality or illogicality. The Tribunal was recognising that Baluchistan and Quetta in particular was the place of real risk for Hazara people whatever might be the risks of sectarian violence between Sunni and Shia in other parts of Pakistan.
The argument on this ground relates to the way in which the Tribunal dealt with the location findings but in particular with its use of the country information on that topic and the distinction drawn between the risk to Hazara Shia in Baluchistan and in other parts of the country. On the basis of the country information taken into account by the Tribunal I do not accept that the decision the Tribunal was not satisfied that the applicant’s fear of persecution was well founded was a decision which was not open to it or a decision which no logical or rational person could have come to on the same material.
Under the rubric of this ground the applicant drew the Court’s attention to the fact that the entirety of [135] of the Tribunal’s reasons replicates precisely [98] of a decision of a differently constituted Tribunal in an unrelated application. I set out the paragraph:
There will doubtless be further attacks against Shia targets as there have been for a long time but in my assessment the chance that the applicant would be at one of the thousands of Shia mosques or at one of the gatherings or processions where there was such an attack, and so seriously harmed, is remote.
In the matter before me this paragraph follows a paragraph in which reference has been made to the numerous attacks upon Shia mosques and processions and identities over many years including recent years. Whelan FM in MZYLH v Minister for Immigration and Citizenship [2011] FMCA 888 was apparently dealing with a Tribunal decision involving a similar situation. She says at [116]:
The fact that the Tribunal makes no specific finding in paragraph 214 in relation to any of the locations about which material has been extracted and instead repeats the conclusions of another member in another matter gives rise to an inference that the member did not consider the material actually before him in reaching his conclusions.
Her Honour’s observations are, with respect, unexceptional but not having access to the Tribunal’s reasons in that matter it is difficult for me to discern what is meant precisely by the reference to the repeating of the conclusions of another member in another matter and to what extent the conduct of that Tribunal is analogous to what has happened at [135] here.
Certainly the provenance of the language of [135] should have been acknowledged by the Tribunal. It is a clearly expressed summary of the magnitude of the risk of a specific Shia individual such as the applicant being seriously harmed in such a terrorist outrage, especially when the number of Shia in Pakistan is borne in mind (the estimate cited in [83] is between 17 and 26 million people).
While the failure to acknowledge the source of the expression troubles me the conclusion itself is a sound one on the evidence and I do not regard the adoption of someone else’s language to express that conclusion as being sufficiently serious or troubling to enable me to conclude that the fact finding itself on this topic was so tainted or contaminated as to suggest irrationality or illogicality.
Ground two is not made out.
Ground three promotes the argument that the Tribunal ignored relevant material in its consideration of the issue of whether there was a real and not remote risk of persecution on the grounds of race, religion or nationality. The four items of material which are said to have been overlooked in the exercise of engaging with the relevant material were:
a)the country information relating to Shia Sunni sectarian violence throughout Pakistan [85];
b)incidents of Shia Sunni violence in Lahore and Sarghoda, both in the Punjab [86];
c)targeted attacks on Hazara in Baluchistan (not limited to Quetta) [87];
d)targeted killings of and political violence against Hazara in Karachi in Sindh province [91].
It can be readily accepted on the authority of Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 that for the Tribunal to ignore relevant material in a way that effects its obligation to conduct a review will ground judicial review. Mr Hooker, for the applicant, acknowledged the important distinction between failing to refer to a piece of evidence relating to a relevant consideration on the one hand and failing to have regard to a relevant consideration itself. In his written submission he identified the proper basis for distinguishing between the two and that is whether the failure to engage with the material truly affected the exercise of the power and he gave recent Federal Court authority where, in the context of IMR reviews, inadequate reasoning was said to disclose a failure to engage with the relevant material thus amounting to jurisdictional error and he contended that the matters particularised in the previous paragraph herein were not merely items of evidence but factual material directly bearing upon the issue of whether the risk of persecution was real and not remote.
It must be borne in mind that the country information was information the Tribunal itself gathered and considered and then specifically referred to in its Reasons. This would tend to suggest that it gave active and meaningful consideration to the material. Furthermore, there can be little doubting that the Tribunal gave consideration to the contention of the applicant that he holds a well founded fear of persecution, and within that context gave consideration to the relocation issues. A consideration of the country information indicated nationwide Shia/Sunni violence leading at times to acts of terrorism against Shia but with the exception of the isolated instance of killing of Hazara in Karachi the country information relating to attacks on Shia Hazara was limited to Baluchistan province and especially Quetta.
I am satisfied that bona fide consideration was given to this material in addressing the issue of the well founded fear of persecution and that the use of the material in that context was unexceptional. I am not satisfied that relevant factual material going to this discrete consideration was ignored.
The application for review is dismissed.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Lindsay FM
Date: 19 February 2013
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