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MIGRATION - Refugee - errors of law - exceeded jurisdiction.

SZAVL v Minister for Immigration [2004] FMCA 866 (24 November 2004)

SZAVL v Minister for Immigration [2004] FMCA 866 (24 November 2004)
Last Updated: 6 December 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAVL v MINISTER FOR IMMIGRATION
[2004] FMCA 866




MIGRATION - Refugee - errors of law - exceeded jurisdiction.




Minister for Immigration & Multicultural & Indigenous Affairs v Khawar (2002) 210 CLR 1

Minister for Immigration & Multicultural & Indigenous Affairs v Respondents S152/2003 (2004) 205 ALR 487

Applicant:
SZAVL




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SZ1150 of 2003




Delivered on:


24 November 2004




Delivered at:


Sydney




Hearing date:


23 September 2004




Judgment of:


Nicholls FM




REPRESENTATION

Counsel for the Applicant:


Nil




Solicitors for the Applicant:


Ward Maxwell & Co - (ceased to act)




Counsel for the Respondent:


Robert Bromwich




Solicitors for the Respondent:


Clayton Utz




ORDERS

(1) Application dismissed

(2) Applicant to pay respondent's costs set in the amount of $5000, pursuant to rule 21.02(2)(a) of the Federal Magistrates Court rules.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SZ1150 of 2003

SZAVL



Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT

1. This judgement arises from an application filed by the applicant on

24 June 2003 seeking judicial review of the decision of the Refugee Review Tribunal ("the Tribunal") made on 28 April 2003 and handed down on 20 May 2003 affirming the decision made on 26 October 2001, of a delegate of the respondent Minister to refuse a protection visa to the applicant.

2. The applicant is a citizen of Pakistan, and arrived in Australia on

20 April 2001. She lodged an application for a protection (Class XA) visa with the respondent Minister's Department ("the Department") on 21 July 2001.

3. She claimed that she was "an extraordinary worker" of the women's branch of a Shia organisation promoting the interests of the

Shia minority in Pakistan and the "General Secretary of the women's group of the Shia community" [Court Book 17.5]. She claimed that she was active in the community, particularly amongst women, to protest the activities of a rival Sunni organisation and "the terrors against the Shia women in Lahore district" [CB17.5].

4. She claimed that she had been threatened and attacked and asked to resign her position "otherwise I will be kidnapped and killed." She further claimed that as she effectively had no male relative to look after her [CB18.2], she left Pakistan and came to Australia.

5. At the hearing before me on 23 September 2004, the applicant was unrepresented and presented her claims with the assistance of an interpreter in the Urdu language. Her legal representative had filed with the Court a notice of ceasing to act on 9 September 2004.

6. The applicant also relied on:

* her application to this Court filed on 24 June 2003

* an amended application prepared with the assistance of a solicitor under the Legal Advice Scheme and filed on 29 July 2004

* an outline of submissions filed in Court on 23 September 2004.

7. I also had before me a Court Book prepared by the respondent Minister's solicitors filed on 5 September 2003, the respondents outline of submissions filed on 20 September 2004 and heard argument from Mr Bromwich of counsel for the respondent.

8. The grounds of the application are:

a) The Tribunal exceeded or constructively failed to exercise jurisdiction in making the decision under judicial review.

b) The Tribunal erred in law.

9. The applicant's claims in her application (of 24 June 2003) are expanded in her amended application and I will deal below with the operative parts of the particulars to these claims with reference to the paragraph numbers from the amended application.

10. One preliminary matter is the applicant's understanding of what this Court can do for her. Much of her presentation at the hearing was on the merits of her refugee claims. This mirrored her application to this Court. At the hearing Mr Bromwich, through me, explained to the applicant the role of this Court in determining the application she had made and of the role of the Tribunal. I thank Mr Bromwich for his submissions on this point.

11. Paragraphs (i) and (ii) and all but the last sentence of (iii), of the amended application appear to be a recitation of certain law and facts leading to the making of the decision. The last sentence of paragraph (iii), states in relation to the Tribunal decision of 28 April 2003:

"That decision was infected with error and consequently the Tribunal acted contrary to law, resulting in a constructive failure to exercise jurisdiction."

I took this to be a general statement of the applicant's position and that to the extent possible, subsequent particulars were intended to support this statement.

12. Paragraph (iv) of the amended application:

"In order to properly exercise jurisdiction conferred on it, the Tribunal was required to conduct a realistic and thorough review which addressed and considered all claims made by the applicant which were relevant to whether or not he [sic: she] was a refugee as defined by the 1951 Convention relating to the Status of Refugees (the Convention), which the Tribunal failed to do."

While taking issue with some of the words used ["realistic"; "thorough"] the respondent did not take issue with the need for the Tribunal to consider an applicant's claims, and that, if accepted, these would give rise to Convention protection obligations.

13. Paragraph (v) of the amended application:

"The Tribunal incorrectly interpreted the requirements of the law and the Convention in its finding that protection obligations towards the applicant were not enlivened by virtue of its findings that the attack she suffered was directed at the organisation of which she was a member, and not at her in particular, that she "was not the main target of the attack" and that she was not singled out in being assaulted as it is not necessary to be the main target or to be singled out in order to be a refugee."

14. In her written outline of submission the applicant refers to page 22 paragraph 2 of the Tribunal decision [CB 175] and in particular:

"The SSP [Sipah-e-Sahaba Pakistan, a Sunni group opposed to the applicant's group] had vandalised the office and had taken away files. They had only paid minor attention to the applicant. She was not singled out in being assaulted and the President of the branch who was present in the office at the time had also been assaulted."

She submitted in writing, and repeated this at the hearing before me, that the Tribunal was wrong in saying that she had not been "singled out" and that the focus of the attack by the Sunnis was her organisation and not her.

She further claimed that the Tribunal did not consider her statements, recorded on a tape in the custody of the Respondent's department that she was the target of the attack and was only saved because of the intervention of other male workers. She also said at the hearing before me that although she said all these things at her "oral interviews" the Tribunal did not give proper consideration to the circumstances.

15. Mr Bromwich submitted that this ground of review confused findings of fact with legal tests for the application of the Convention. The Tribunal was not saying that it was necessary to be the main target of an attack or to be singled out in order to be a refugee - what it was saying was that this was the fact in the situation that presented itself and noted that only minor attention had been paid to the applicant.

16. It is clear that the applicant herself is saying that she was the main target of the attack by the Sunni extremists, and that the reason was that she did not stop working for the cause of the Shia sect. I can find no evidence before me to support the implication in this particular, that the Tribunal had stated the relevant test to be that it was necessary to be the "main target&quo;
t; or to be "singled out". The Tribunal's task is to make on assessment on whether the applicant has a well-founded fear of persecution for a Convention reason. In this, amongst other matters, it needed to look at what the applicant was putting forward in support of her application. This is what the Tribunal did [see CB 174-175.8]. It made a finding of fact that not withstanding the applicant's assertion that she was the main target, that in fact it was her organisation and not her, that was the target of the attack, and it gave reasons for this finding.

17. As to the claim that the Tribunal did not consider the matters raised by the applicant [each of the first quotes taken from the applicant's written submission filed at the hearing before me]:

- "that the fundamentalist Sunni came to attack"

See CB 175.2:

"The Tribunal accepts that on 15 February 2001, the TJP's women's branch office in Lahore, where the applicant worked, was attacked by the SSP."

- that the fundamentalist Sunni came to attack me":

See CB 175.3:

"The Tribunal also accepts that the applicant was assaulted. However, according to her own evidence, she did not sustain any injuries and managed to flee the building soon after the attack."

- "I was only saved because the male workers came for my rescue and as a result I ran out, jumped into the car and we took of."

See CB 161.1:

"They were rescued after a few people from the organisations arrived and clashed with the SSP supporters. As soon as she managed to get out of the building, her brother-in-law who was supposed to pick her up after work was waiting outside. So she got into his car and drove away."

- ".... that even my previous threats for a long time and continuous harassment by the attacker was not considered by the Tribunal."

See CB 160.5:

"
;The Tribunal asked her about the threatening phone calls she claims to have received.&
quot;

and

See CB 174.8

"The applicant claims that from January 1999 until February 2001 she received frequent threatening calls from SSP members."

18. A plain reading, let alone a beneficial reading, of the extract of the Tribunal's decision to which the applicant refers [CB175.4], shows that these matters were considered by it. The applicant may disagree with the conclusions reached by the Tribunal, but she cannot say that the Tribunal did not consider the matters she put forward. Her claims do not amount to establishing that the Tribunal failed to look at these relevant matters.

In relation to this particular the applicant was unable to show any error in the process followed by the Tribunal.

19. Paragraph (vi) of the amended application:

"That the Tribunal accepted that the applicant's office was attacked and that she was assaulted, but made no finding with regard to the threats by the SSP", which was an error of law.

The applicant submitted in writing that:

"The RRT did not consider in its entirety the most important statement in my ever first application for a protection (class XA) visa given on page 018 of the green book."

This statement is:

"There are well founded grounds of persecution as the people of Spah-e-Sahaba had threatened me to kidnap me and get rid of me. I have no male relative to look after me. My father is too old to take care of me. I have no brother in Pakistan. Therefore, if I go back to my country, the people of Spah-e-Sahaba (SSP) will kill me as I have been told by telephone that they are still trying to find me."

At the hearing before me the applicant emphasised that the Tribunal did not give proper consideration to her circumstances [I will deal with the issue of "no male relative" later.].

As to the issue of "no consideration" this is factually incorrect, except for the point of "no male relative."

At CB174.9-175.8 the Tribunal clearly looked at the threats of the SSP and made a finding that it was satisfied for a number of reasons, of which the finding that she was unable to explain why the SSP would make threatening phone calls for a two year period "without taking steps to materialise these threats,&q;
uot; was indicative of the SSP's lack of interest in her. The Tribunal, as it was entitled to do, then said that it was satisfied that the applicant's chance of facing similar harm in the reasonably foreseeable future was remote.

As to no "proper consideration" of the threats by the SSP the applicant has not presented any argument, beyond mere assertion or any evidence to support this claim.

20. Paragraph (vii) of the amended application:

"that the Tribunal failed to take into consideration the increased likelihood of persecution faced by the applicant as a result of the combination of her religion, political opinion and membership of a particular social group."

No particulars are provided. Nor did the applicant directly address this at the hearing before me.

21. This ground appears to be an attempt to say that the Tribunal failed to look at all relevant convention grounds and the effect of the combination of all these grounds.

The Tribunal characterised the applicant's claims as "based on the Convention ground of religion"[CB174.1]. It particularised her claims as "essentially...that she is a Shia and a member of TNFJ"[a Shia group]. "She claims that she will face persecution by the SSP[an extremist Sunni group]"and then says: "the Tribunal further accepts that she was the General Secretary of the women's branch of the TJP in Lahore."

22. In her application to the Court, the applicant claimed:

"...I am a refugee in true sense due to belonging to a nmority [sic: minority] group of (Shiyas) who are opposed and are killed by a militant group of (SIPAHI SOHABA) need protection visa in order to save my life."

In written submissions that applicant says:

"The basis of my entire case was and has been that I was working for TJP, a National Shia organisation of Pakistan of which the women Shia body was one very, important and powerful branch, and it was very actively involved to pursue the rights of the Shia sect...&qu;
ot;

The Tribunal accurately stated her description of her circumstances, no matter how the amended application may seek to imply some deficiency in the labelling of these claims.

In any event, however this is characterised, religious or political or both, before me there has been no submission nor can I find any reference in any material before the Tribunal which is "political" that was not considered by the Tribunal.

23. As to membership of a particular social group the applicant has, in the same extract from her application quoted above said that she belongs to a minority group of "Shiyas".

In her application to the respondents Department she said she was the "General Secretary" of the "women's branch" or "women's group" of the TFNJ [CB17.5].

In her written submission, the applicant referred to page 23 paragraph 3 [CB176] and in particular:

"the Tribunal, however, is satisfied that the applicant does not face a real risk of persecution for the reason of belonging to the Shite sect of Islam in Pakistan."

Her submission was that many Shias have been, and continue, to be killed in Pakistan by fundamentalist Sunni Muslims. Her claim was that this "...obvious evidence was not considered by the RRT at all."

A reading of the Tribunal's reasons for decision [CB154 to 178] shows that there was considerable material before the Tribunal on the situation facing Shias in Pakistan. It is also clear that the Tribunal looked at the applicant's claims in light of her belonging to the Shia sect. The passage she herself refers to shows that the Tribunal did this. It found that Shias are not systematically discriminated against and are not an economically disadvantaged group. It found that where Shias have been targets of Sunni organisations the perpetrators are generally members of extremist Sunni organisations such as the SSP. [CB 176.8]

24. The respondents Counsel submitted that every factual aspect of the applicant's claims was considered. The applicant belonged to a woman's group within the Shia in Pakistan. The events that she said took place were assessed. [CB 174.7-175.5]. There was no additional element of risk asserted by any "differentiation or aggregation of the kind suggested.&quo;
t;

25. At the hearing before me, when I gave her an opportunity for a final address, the applicant stressed that she had been targeted directly. She asked that I note a significant point that she never mentioned that all Shia's were in danger from the SSP, but that her case was on an "individual" basis. She put to me that she never said that everyone in the group was attacked. She said that the SSP did not like her work and that's why they attacked her. That it was specifically about her. In that sense she said she had never said that she belonged to a group, that is a group who had all been attacked. This is consistent with what the applicant put in her written submission that is that the SSP attacked her because of her activities:

"...SSP attacked on me to get rid of me as I had refused to bow to their demands which was to stop working in the Shia operational office."

26. What the Tribunal did was to look at the applicant's individual claim in the context of the general situation relevant to Shias in Pakistan. This is the way that the applicant had presented her case. She said Shias were in danger from Sunni extremists, she was a Shia, but that she was individually targeted because of her activities.

At CB 176.9 the Tribunal says:

"The Tribunal has carefully considered the news items provided by the applicant which refer to instances of sectarian violence in Pakistan."

The Tribunal then says, consistent with the applicant's claim that her case was on an "individual" basis:

"The Tribunal is of the view that the news items do not provide any specific information relating to the applicant nor do they add value to her evidence. The news items generally confirm the independent evidence before the Tribunal."

Although again the applicant disagreed with the Tribunal's findings, it was entitled to reach the conclusions that it did. Further, to the extent that this pleading now seeks to argue an error by the Tribunal that it failed to look at the increased likelihood of persecution because of the applicant's membership of the Shia group, this is inconsistent with the way the applicant herself put her case.

27. Paragraph (vi) of the amended application:

"That the Tribunal failed to take into consideration the specific situation of the applicant, particularly the circumstances of the applicant as a woman without a male protector in Pakistan, when considering whether she had a well-founded fear of persecution should she be returned to Pakistan, and when considering whether she had adequate state protection."

28. Again no particulars are provided, but in her written submission to the Court the applicant said:

"The RRT did not consider in its entirety the most important statement in my ever first application for a protection (class A) visa given on page 018 of the green book. I beech [sic: beseech] the Court to compare my said statement with the paragraph 21 on page 7 and it will be automatically concluded that the statement was neither considered nor addressed to in RRT decision which is a gross oversight and not consistent to the tenets of justice and fair play."

The reference to "paragraph 21 on page 7"
; is a reference to the respondents written submissions where it was stated:

&
quot;In this case there was no reference to the absence of a male protector and indeed no evidence to suggest that it was an issue for the applicant."

29. The applicants statement at CB18, which was part of the application to the respondent Ministers Department, and was before the Tribunal:

"There are well-founded grounds of persecution as the people of Spah-e-Sahaba had threatened me to kidnap me. I have no male relative to look after me. My father is too old to take care of me. I have no brother in Pakistan. Therefore if I go back to my country, the people of Spah-e-Sahaba (SSP) will kill me as I have been told by telephone that they still are trying to find me."

At CB 161.5 the Tribunal refers to:

"She stated that apart from her 65 year old father who lives in Lahore, she has no one else in Pakistan."

30. In written submissions to the Court, the Respondent's Counsel argued that this ground was an attempt to introduce a "Khawar-type" [Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR1] argument into this case. In that case "the visa applicant expressly claimed that domestic violence against women was tolerated or condoned as an aspect of systematic discrimination against women, including selective enforcement of the law because she was a woman."

31. At the hearing, Mr Bromwich agreed that contrary to the respondent's written submission the point of "no male protector" had been raised, but in any event:

* the absence of a male protector does not in itself give rise to a Convention reason;

* that there would still need to be a well founded fear of persecution for a Convention reason made for the applicant to succeed;

* there would need to be a lack of effective state protection for the applicant to succeed; and

* that the case raised by the applicant was that she was a member of the Shia group, she was active in a womens branch of this group, and that she feared persecution because of her activities arising out of that membership. Whatever the applicant may say at the hearing, this was how she put her case to the Tribunal.

32. In determining whether there was a well founded fear of persecution for a Convention reason the Tribunal came to the view [see CB 175] that it was the organisation to which the applicant belonged which was the target of extremist Sunnis and not the applicant herself. It found that

"the applicant's evidence did not suggest that she had a significant profile within the TJP which caused the SSP to focus their attention on her."

It concluded [see CB 175.8]

"That the applicant's chance of facing similar harm...is remote."

33. Her claims going to her fear were centred around her membership of a Shia organisation and her activities with the women's group within that organisation. These activities brought her to the notice of the Sunni extremists. This was the case raised by the applicant before the Tribunal and which was consistent with what she said at the hearing before me. The absence of a "male protector" was raised in the context of the failure of protection, and in particular that the local [Lahore] police favoured the SSP and protected the SSP when it committed crimes against others. This is noted by the Tribunal at CB 158.5.

34. The Tribunal, starting at CB 175.9 did look at the issue of "adequate and effective state protection in Pakistan."

I took the reference to "effective" to be another description of "adequate" or "reasonable" and not a reference to third country protection, which is often described as "effective protection."

35. In the case of Khawar to which the Ministers counsel has referred me, the applicant's complaint was that she feared harm for personal reasons, that is, domestic violence perpetrated by her husband and his family. The harm that she feared was not for a Convention reason, but she claimed that she was unable to obtain police protection from this harm. The High Court said that if a person can access reasonable state protection on a non-discriminatory basis then they would not fall within the definition of a refugee. But if reasonable state protection is withheld for a Convention reason, then the claimant may fall within the definition.

36. In the case before me, the applicant has not claimed harm for a non-Convention reason. She claims harm arising from religious or politico-religious reasons against the background of conflict between Shias and Sunni extremists. However, the High Court in Khawar also said that persecution by a private person could fall within the definition of refugee, where the Government, including the agencies of law and enforcement (police) are unwilling or unable to provide reasonable protection on a non-discriminatory basis.

37. His Honour Chief Justice Gleeson [at 31] said:

"Where persecution consists of two elements, the criminal conduct of private citizens, and the toleration or condonation of such conduct by the state or agents of the state, resulting in the withholding of protection which the victims are entitled to expect, then the requirement that the persecution be by reason of one of the Convention grounds may be satisfied by the motivation of either the criminals or the state."

In this applicant's case, the Tribunal had, inter alia, before it her claim that:

* she was attacked by a Sunni extremist group

* the Lahore police would not protect her and actively protected the Sunni extremist group

* she had no male protector.

38. The applicant has argued:

a) That she is a member of the Shia community in Pakistan.

b) That she is member of a Shia organisation and in particular that she is active in a woman's group which is an important part of this organisation.

c) That it was because of her activities that she became the individual target of attack by Sunni extremists.

d) The state, and in particular the local [Lahore] police would not protect her.

e) She has no male "protector"

39. The Tribunal accepted (a) and (b). The Tribunal did not accept (c). It found that the attack of which she complained was an attack on her organisation and not on her. At CB 175.8 the Tribunal said:

"The Tribunal is satisfied that the applicant's chance of facing similar harm in the reasonably foreseeable future is remote."

This should have been the end of the matter. The Tribunal found she did not have a well founded fear of persecution for a Convention reason. But the Tribunal in any event, went on to look at the issue "of adequate and effective state protection in Pakistan" [CB 175.9].

40. The Tribunal in its decision record notes her claim in relation to the police favouring the SSP. The Tribunal does not mention the Lahore police by name in the part of its record of decision headed "Findings and Reasons" [CB 174-177]. But at CB 176.4 says:

"There was no evidence before the Tribunal to suggest that the authorities in enforcing the law are in any way biased in favour of the SSP. Rather, the information before the Tribunal suggests that the Pakistani Government has been neutral in dealing with and curbing extremist violence."

On a plain reading, "authorities" "enforcing the law" would include the police. In any event there was nothing before the Tribunal, other than statements by the applicant that the local police would act contrary or differently to the broader state apparatus.

41. The applicant produced no evidence to support her claim that the police in Lahore acted in a selective way in their treatment of Shia/Sunni clashes. On the material before it the Tribunal was entitled to make the finding that it did. Therefore, even in the Khawar context, while the Tribunal said in effect, even if there was harm from conduct by private citizens, it made a clear finding that amounted to no "toleration or condonation of such conduct by the state or its agents." It found there was adequate state protection for her in Pakistan.

42. The Tribunal noted that in assessing whether State protection is available, absolute protection of an individual is not required. The High Court in MIMIA v Respondents S152/2003 (2004) 205 ALR 487 is authority that a State is not required to guarantee the safety of its citizens caused by non-State persons. Further, his Honour Justice Kirby stated at [117]:

"The Convention does not require or imply the elimination by the State of all risks of harm"...It posits a reasonable level of protection, not a perfect one."

The Tribunal found in this case that it was satisfied that the Government of Pakistan will provide the applicant with adequate State protection to remove a real chance of persecution by extremist organisations.

43. Given the finding above, that is, that even if the applicant were to face harm by the SSP, the state and its relevant instrumentalities would provide adequate and "effective" state protection. The issue of "no male protection" therefore is irrelevant and does not assist the applicant.

44. The Tribunal did look at all the factual claims put forward by the applicant and found she did not have a well founded fear of persecution for a Convention reason and that in any event there was adequate state protection available to her.

For these reasons, the application must be dismissed.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: Wagma Aziza

Date: 24 November 2004
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