FEDERAL COURT OF AUSTRALIA

Migration - application for review of decision by Refugee Review Tribunal refusing grant of a protection visa – whether persecution requires ‘systematic harassment’ - whether the Tribunal failed to give reasons for its decision – whether the Tribunal failed to set out its findings on material questions of fact.

Migration Act 1958 (Cth), ss 36(2), 430(1), 476(1)(a), 476(1)(b), 476(1)(e).

Convention Relating to the Status of Refugees, Article 1A(2).

Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567, referred to.

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, cited.

Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, cited.

Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565, referred to.

Mohamed v Minister for Immigration and Ethnic Affairs, unreported, 11 May 1998, Hill J, referred to.

Murugasu v Minister for Immigration and Ethnic Affairs, unreported, 28 July 1987, Wilcox J, referred to.

Abdalla v Minister for Immigration and Ethnic Affairs, unreported, 20 August 1998, Full Court, referred to.

Adan v Secretary of State for the Home Department [1998] 2 WLR 702, cited.

Kabail v Minister for Immigration and Ethnic Affairs, unreported, 3 September 1998, Burchett J, cited.

Hamad v minister for Immigration and Multicultural Affairs, unreported, 4 November 1998, Moore J, cited.

Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, cited.

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, cited.

Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402, followed.

Baxter Healthcare Pty Ltd v Comptroller-General of Customs (1997) 72 FCR 467, cited.

Commonwealth v Borg (1991) 20 AAR 299, cited.

Zayout v Minister for Immigration and Ethnic Affairs, unreported, 30 October 1998, Hill J.

Rich Rivers Radio Pty Ltd v Australian Broadcasting Tribunal (1989) 22 FCR 437, cited.

Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No 1) (1987) 16 FCR 465, followed.

NAVEED ANJUM v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

NG 673 of 1998

SACKVILLE J

SYDNEY

17 DECEMBER 1998

THE COURT ORDERS THAT:

1.                  The decision of the Refugee Review Tribunal made on 18 June 1998 be set aside.

2.                  The matter be remitted to the Tribunal, differently constituted, for rehearing according to law.

3.         The respondent pay the applicant’s costs.

Note:                Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

The Proceedings

The applicant is a citizen of Pakistan, now about 25 years of age.  He is a Shia Muslim.  Shia Muslims are a minority group among Muslims in Pakistan.  Until his arrival in Australia in April 1995, he lived and worked in the city of Sahiwal, in the province of Punjab.  He claims that he fears that he will be persecuted by members of the Sunni Muslim majority for reasons of his religion, if he were to return to Pakistan.

The applicant seeks review of a decision of the Refugee Review Tribunal (“RRT”), made on 18 June 1998.  The RRT affirmed a decision of the Minister’s delegate made exactly one year earlier, on 18 June 1997, refusing to grant the applicant a protection visa. 

The further amended application raised a number of grounds for review of the RRT’s decision.  It is enough, for present purposes, to identify the applicant’s two principal contentions.

·        First, the applicant says that the RRT erred in law, by applying the wrong test for determining whether the applicant had suffered “persecution” in Pakistan.  According to the applicant, the test applied by the RRT required that an individual demonstrate that he or she had suffered “systematic harassment” before a finding of persecution could be made.  The Applicant submits that that test was wrong, because an individual can suffer “persecution” in the Convention sense without demonstrating that the harassment or violence was systematic.

·        Secondly, the applicant claims that the RRT failed to set out the reasons for its decision or to make findings on material questions of fact, as required by s 430(1)(c) and (d) of the Migration Act 1958 (Cth) (“Migration Act”).  In particular, he says that the RRT did not set out its reasons or make the required findings for its conclusion that the applicant had not suffered persecution on a Convention ground.

Legislation

A criterion that must be satisfied for the grant of a protection visa is that the applicant is a non-citizen in Australia to whom Australia has protection obligations under the Convention: Migration Act, s 36(2).  Article 1A(2) of the Convention defines a refugee as any person who

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

Section 430(1) of the Migration Act provides as follows:

“430(1)           Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:

(a)               sets out the decision of the Tribunal on the review; and

(b)               sets out the reasons for the decision; and

(c)               sets out the findings on any material questions of fact; and

(d)               refers to the evidence of any other material on which the findings of fact were based.”

A “judicially-reviewable decision” (which includes a decision of the RRT: s 475(1)(b)) may be reviewed by the Court on any one or more of the grounds specified in s 476(1).  These include:

“(a)   that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;

          …

(e)       that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision.”

The RRT Decision

The RRT recorded the applicant’s claims, as follows:

“The applicant is a 26 year old, single, tailor who lived and worked in the city of Sahiwal, in the Punjab province.  He claims to be a member of the muslim Shia minority, and one who has suffered discrimination and oppression at the hands of the majority Sunnis.

In his primary application, the applicant claimed that on 12 July, 1992, Qari Manzoor Ahmed and other members of the Sunni extremist organization, the Anjuman Sipah-i-Sahaba Pakistan (ASSP), mobbed his house and pushed the family outside.  When resistance was encountered, the mobsters opened fire and his uncle was killed.  The applicant, his father and his brothers escaped and went to Chichauratni in the Punjab.  He stated that the local administration played an intermediary role and the dispute was ‘nipped in the bud for the moment’.  There was no retaliatory blood spilt.  However, on 7 April, 1994, when he was working as a tailor in Sahiwal, the same people as before looted his house and set it on fire, and he was severely wounded.  He claimed that he then fled to Australia to save his life.

At the Tribunal hearing on 4 May, 1998, the applicant told the Tribunal that in the third or fourth month of 1992, Qari Manzoor Ahmed, the Sunni leader in the city of Sahiwal (which has a population of approximately 70-80,000) came to his father’s tailor shop with ten to twelve others to warn his father and his family not to take part in the annual Moharran procession which the applicant’s father usually helped to organise as he was a prominent person in the Shia community.  After issuing threats, the group threw articles from the shop and then burnt it down.  The applicant and his father went to the police station to report the incident, but no action was taken.  In response to Tribunal questions, the applicant said that the statement in his primary application relating to the killing of his uncle during this particular incident was incorrect and he ascribed the error to a misunderstanding by the friend who had filled in the application on behalf of the applicant.  The applicant told the Tribunal that he is unable to read.

The applicant told the Tribunal that his uncle had been shot and killed during a Shia religious procession which took place in 1993/4.  His uncle and others had been shot at by assailants on motorcycles, whom the applicant believes to be members of a Sunni organization.  The applicant said that nobody has been charged with his uncle’s death.

Although the applicant’s father was, and continues to be, a prominent member of the Shia community, neither he nor the applicant have ever been members of the extremist Shia political organisation known as either Tehrik-i-Nifaz-i-Fiqah-i-Jaffaria (TNFJ-Movement for the Implementation of the Shia Code) or Tehrik-i-Jaffaria-Pakistan (TJP).  The applicant told the Tribunal that both he and his father belonged to the Pakistan Peoples Party (PPP) and did not belong to any Shia political (as distinct from religious) group or organization.

After the family tailor shop had been burnt down in the 1992 incident, one of the applicant’s brothers (who was living in Japan) sent money to his family to allow for another tailor shop to be started.  This shop was approximately four to five blocks away from the previous establishment.  Neither shop was attached to the family home, which was some kilometres away.  This shop was sold by the applicant’s family in 1994, in order to provide the money for the applicant’s departure to Australia in April, 1995.

The applicant told the Tribunal that in April, 1994, during the preparation for the annual Moharran procession, whilst on his motorcycle, he was stopped by a group of about 7-8 people only a short distance from his home.  When he got off his bike, they converged on him and kicked him and beat him with rods.  Although he did not recognise his assailants, he was told later by friends that they were Sunnis.  The applicant was taken to his home by friends and required 18 stitches to his head.  He said that he was hospitalized for two months.  After this incident, he and his family decided that he should leave Pakistan and go to Australia.  Since his arrival here, other relatives, also the subject of violence and harassment because of their membership of Shia religious groups, have fled to Australia.”

It will be seen that the applicant’s account, as recorded by the RRT, changed in two significant respects between his primary application, which was made on 18 May 1995, and the date he gave evidence at the hearing, on 4 May 1998.  In his first account, the applicant claimed that his uncle had been killed in the incident on 12 July 1992.  In his evidence, however, the applicant said that his uncle had been shot and killed in 1993 or 1994, during a Shia religious procession.

According to the RRT, the applicant also claimed in his primary application that, on 7 April 1994, Sunni extremists had looted his house and set it on fire and that he was severely wounded.  The RRT seems to have overlooked the fact that, in his primary application, the applicant made the further claim that, on 7 April 1994, his workplace was looted and set on fire.  It is not entirely clear whether the applicant, in his primary application, intended (as the RRT thought) to assert that his house had been burned in what he described as the “raid”.  In any event the RRT proceeded on this basis.  In his evidence, the applicant said that he had been wounded in April 1994, when he had been attacked near his home.

After recording the applicant’s claims, the RRT noted that country information available to it indicated that “sectarian violence involving extremist militant muslim Sunni and Shia groups continues to be a problem in Pakistan”.  A report by Amnesty International, dated 11 August 1997, stated that more than 1,230 people had died that year (presumably 1997) in sectarian violence.  The RRT also quoted from a Department of Foreign Affairs and Trade cable, dated 11 July 1997.  This cable stated that

“[v]iolence arising from rivalry between Shia and Sunni muslim groups has been a persistent feature of the Pakistan political landscape over the last fifteen years, especially in the province of Punjab.”

The cable further noted that the Nawaz Sharif government had responded to periods of heightened sectarian violence by rounding up large numbers of known activists from the various religious parties.  The result of more effective targeting of leaders of extremist groups had been that the festival of Muharrum passed with relatively few incidents.  The deployment of the army in sensitive areas had also had had a stabilising effect.  In May 1997, the National Assembly had passed a bill authorising the establishment of special terrorist courts.

The RRT then gave brief reasons for rejecting the applicant’s claim:

“The Tribunal accepts that the applicant and his family are practising Shia muslims and that, as stated at the Tribunal hearing (notwithstanding the claim in his primary application) neither he nor his family have ever been associated with any politically-based Shia organization.  The Tribunal also accepts that in 1992 the family shop and its contents were destroyed by people who were members of the Sunni majority and that on another occasion, the applicant was beaten up by unknown assailants and he consequently required hospitalization.  However, the Tribunal is mindful that ‘persecution’ should be distinguished from ‘civil unrest’.

Because persecution involves systematic conduct aimed at an individual or at a group of people, ‘it is not enough that there be fear of being involved in incidental violence as a result of civil or communal disturbances’.  However, ‘where a community is being systematically harassed to such a degree that the word persecution is apt’, then an individual member of that community may have a well-founded fear of persecution: Periannan Murugasu v Minister for Immigration and Ethnic Affairs, unreported, Federal Court, Wilcox J, 28 July 1987, at 13.

The Tribunal finds that the two incidents of violence suffered by the applicant, although extremely distressing, do not constitute part of a course of systematic harassment towards the applicant or towards Shia Muslims generally, and therefore do not amount to ‘persecution’ in the Convention sense.  Furthermore, although neither incident was investigated by the police to the satisfaction of the applicant, this apparent failure does not lead the Tribunal to conclude that the authorities would be unable or unwilling to protect the applicant from persecution.

In summary, the Tribunal is not satisfied that the applicant has suffered persecution in the past for a Convention-related reason and finds that he does not have a well-founded fear of so doing in the reasonably foreseeable future.”

Persecution

Because it will be necessary to examine the adequacy of the RRT’s reasons for concluding that the applicant did not have a well-founded fear of persecution for a Convention-related reason, it is convenient to commence with some general principles relating to the concept of “persecution”.

In Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567, the joint judgment (at 575) identified four “key elements” in the definition of “refugee” in Art 1A(2) of the Convention:

“(1)     the applicant must be outside his or her country of nationality;

(2)           the applicant must fear ‘persecution’;

(3)           the applicant must fear such persecution ‘for reasons of race, religion, nationality, membership of a particular social group or political opinion’; and

(4)           the applicant must have a ‘well-founded’ fear of persecution for one of the Convention reasons.”

Their Honours addressed, under separate headings, the concepts of “persecution” and “persecution for a Convention reason”.  They said this (at 575) about “persecution”:

“In [Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, at 388], Mason CJ referred to persecution as requiring ‘some serious punishment or penalty or some significant detriment or disadvantage’.  One other statement of his Honour in that case is also relevant to this appeal.  His Honour said [at 390]:

            ‘Discrimination which involves interrogation, detention or exile to a place remote from one’s place of residence under penalty of imprisonment for escape or for return to one’s place of residence amounts prima facie to persecution unless the actions are so explained that they bear another character.’

In the same case, Dawson J said [at 399] that:

            ‘there is general acceptance that a threat to life or freedom for a Convention reason amounts to persecution….  Some would confine persecution to a threat to life or freedom, whereas others would extend it to other measures in disregard of human dignity.’

In Chan, McHugh J said [at 429-430] that persecution was selective harassment and that in appropriate cases it could include single acts of oppression and measures ‘in disregard’ of human dignity.”

While the majority in Guo addressed the concepts of “persecution” and “persecution for a Conventionreason” under separate headings, the quoted extract from the judgment of Dawson J in Chan suggests that the concept of “persecution” cannot be divorced from the reason for the infliction or threatened infliction of harm. 

In a similar vein, in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, Dawson J (at 242) and Gummow J (at 284) adopted observations made by Burchett J in Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 (FC), at 568.  Dawson and Burchett JJ quoted different parts of the observations, but the whole of the relevant passage from Ram is as follows:

“In my opinion, there is a unity of concept about the whole definition of a refugee contained in the Convention, so far as it relates to membership of a particular social group, which should always be kept firmly in mind.  That concept flows through the separate elements of the definition.  The well-founded fear of which it speaks is a fear of ‘being persecuted’.  Persecution involves the infliction of harm, but it implies something more: an element of an attitude on the part of those who persecute which leads to the infliction of harm, or an element of motivation (however twisted) for the infliction of harm.  People are persecuted for something perceived about them or attributed to them by their persecutors.  Not every isolated act of harm to a person is an act of persecution.  Consistently with the use of the word ‘persecuted’, the motivation envisaged by the definition (apart from race, religion, nationality and political opinion) is ‘membership of a particular social group’.  If harmful acts are done purely on an individual basis, because of what the individual has done or may do or possess, the application of the Convention is not attracted, so far as it depends upon ‘membership of a particular social group’.  The link between the key word ‘persecuted’ and the phrase descriptive of the position of the refugee, ‘membership of a particular social group’, is provided by the words ‘for reasons of’ – the membership of the social group must provide the reason.  There is thus a common thread which links the expressions ‘persecuted’, ‘for reasons of’, and ‘membership of a particular social group’.  That common thread is a motivation which is implicit in the very idea of persecution, is expressed in the phrase ‘for reasons of’, and fastens upon the victim’s membership of a particular social group.  He is persecuted because he belongs to that group.”

This passage indicates that the concept of “persecution”, as used in the Convention, is not limited to the nature of the inflicted or threatened harm, but includes the motivation or attitude underlying the harm.

Systematic Harassment

Several recent authorities have examined the question of whether a person must have experienced or fear “systematic harassment” before it can be said that he or she has a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion”.  In Mohamed v Minister for Immigration and Ethnic Affairs, unreported, 11 May 1998, Hill J identified what he described as the “intrusion” of the word “systematic” into the test for refugee status as having its origins in the judgment of Wilcox J in Murugasu v Minister for Immigration and Ethnic Affairs, unreported, 28 July 1987.

The applicant in Murugasu, a Sri Lankan national of Tamil origin, claimed that he had a well-founded fear of being persecuted because he was a member of the Tamil community.  Wilcox J said this (at 13):

“The word ‘persecuted’ suggests a course of systematic conduct aimed at an individual or at a group of people.  It is not enough that there be fear of being involved in incidental violence as a result of civil or communal disturbances.  I agree with counsel for the applicant that it is not essential to the notion of persecution that the persecution be directed against the applicant as an individual.  In a case where a community is being systematically harassed to such a degree that the word persecution is apt, then I see no reason why an individual member of that community may not have a well-founded fear of being persecuted.”

This passage was cited with approval by McHugh J in Chan, at 429-430.  It was also relied on by the RRT in the present case.

Mohamed was decided by Hill J shortly before the RRT’s decision in the present case, but was not referred to in its reasons.  The applicant in Mohamed was a member of a clan sub-group in Somalia.  He claimed to have a well-founded fear of persecution by reason, inter alia, of his membership of the clan.  Hill J, after quoting from McHugh J’s judgment in Chan, said this (at 10-11):

“It is evident from the passage above cited that his Honour was not suggesting that there needed to be a series of systematic acts against an individual before it could be said that that individual had a ‘well founded fear’ of persecution.  So much appears from the observation made by McHugh J at 430 that a single act of oppression may suffice to show persecution and that it is not necessary that there be a series of acts.  Where the fear of persecution is in respect of an applicant’s membership of a group, acts of systematic harassment against the group will show the fear to be well founded.  There need not be any particular act in fact perpetrated against the individual.  Where the fear of persecution is in respect of an individual’s political or religious beliefs the resolution of the question whether the fear is well founded will be assisted if it is shown that a course of systematic conduct has been actuated against that individual.  But it is not a necessary prerequisite for success in an application.  Evidence that individuals with a similar belief suffered discrimination amounting to persecution would likewise justify the conclusion that the individual’s fear was well founded even if the individual himself or herself suffers only an isolated act of persecution or none at all.  There is no requirement in law that, for an application for refugee status to succeed, the applicant must show a series of coordinated acts directed at him or her which can be said to be not isolated but systematic.

His Honour held that it was an error of law for the RRT to require the applicant, in order to succeed in his claim, to demonstrate that the acts of persecution he had experienced were not isolated examples, but part of a systematic attack directed against him.  His Honour concluded that the RRT in the case before him had committed precisely that error.

A similar approach was taken by the Full Court in Abdalla v Minister for Immigration and Multicultural Affairs, unreported, 20 August 1998, although the Court did not refer to Hill J’s judgment.  In that case a Somali national claimed a fear of persecution on the ground that she was a member of a particular clan, the “Marehan”.  One of the issues in Abdalla was whether the RRT had erred in the following passage in its reasons:

“The evidence in this case indicates a situation where the patterns of communal violence do not form part of ‘a course of systematic conduct’ against the Marehan.  Clearly, the Applicant claims fear of suffering harm within the recurring pattern of communal violence in Somalia but, according to the authorities cited, this is not persecution for the purposes of the Convention.”  (Emphasis added.)

The Court held (at 14) that the requirement of a “systematic course of conduct” had been too widely expressed by the RRT:

“Where there is a recurring pattern of violence towards a person on a Convention ground, there is no reason why such conduct may not constitute ‘persecution’.  Clearly ‘persecution’ involves more than a random act.  To amount to ‘persecution’ there must be form of selective harassment of an individual or of a group of which the individual is a member.  One act of selective harassment may be sufficient.  The fact that a recurring pattern can be loosely described as communal violence or even civil war does not mean that it cannot amount to ‘persecution’.  It is necessary to examine the situation further in an attempt to determine the purpose which gives rise to the violence or danger.” (Emphasis added.)

The RRT had found that the frequent fighting directed against the Marehan clan was partly based on the desire to settle long-standing scores.  Insofar as this was the case, the Full Court said (at 14) that

“it can be concluded that the fighting was directed at them as a group….  This…is within the concept of persecution”.

It was not correct for the RRT to avoid considering the circumstances of the alleged persecution simply because the decision-maker formed the view that communal violence within the context of a civil war is not a form of persecution.  Much depended on the purposes for which the war was being fought.

The Full Court distinguished the decision of the House of Lords in Adan v Secretary of State for the Home Department [1998] 2 WLR 702.  That was a case involving a Somali asylum-seeker who claimed that, as a member of a particular clan, he feared persecution by reason of clan-based civil war in the north of the country.  Lord Lloyd, with whom Lords Goff, Nolan and Hope expressly agreed, concluded (at 713) as follows:

“…where a state of civil war exists, it is not enough for an asylum-seeker to show that he would be at risk if he were returned to his country.  He must be able to show…a differential impact.  In other words he must be able to show fear of persecution for Convention reasons over and above the ordinary risks of clan warfare.”

The Full Court distinguished Adan on the ground that the decision turned on the particular evidence as to the asylum-seeker in that case and the nature of the civil war in Somalia.  Adan was a case of

“apparently indiscriminate violence or oppression manifested towards all clans without any differential impact based on clan membership.  In the present case the RRT was concerned with what the evidence indicates is the special position of the Marehan clan by reason of its association with the former regime.”

Abdalla has been followed in subsequent single judge decisions: Kabail v Minister for Immigration and Multicultural Affairs, unreported, 3 September 1998, Burchett J; Hamad v Minister for Immigration and Multicultural Affairs, 4 November 1998, Moore J.

The Duty to Give Reasons

Mr Johnson, who appeared on behalf of the Minister, did not dispute that a failure by the RRT to comply with its duty under s 430(1) of the Migration Act would constitute a failure to comply with a procedure required by the Migration Act to be observed and thus a reviewable error pursuant to s 476(1)(a).  So much was decided by the Full Court in Abdalla.

When it comes to deciding whether the RRT has complied with the requirements of s 430(1) of the Migration Act, it is necessary to bear firmly in mind the well-established principle of restraint.  The reasons for the decision under review are not to be construed minutely, with an eye keenly attuned to the perception of error.  Nor is the Court to be concerned with looseness in language or unhappy phrasing: Collector of Customs v Pozzolanic Enterprises Pty Ltd  (1993) 43 FCR 280, at 287, approved in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, at 272.  Moreover, the standard required is not one of perfection.  It is enough that the RRT’s findings and reasons deal with the substantial issues on which the case turns: see Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 (FC), at 414, per Sackville J, and authorities cited there.

While the principle of restraint must be kept firmly in mind, it is also necessary to remember the nature of the task being undertaken by the RRT.  As the joint judgment (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ) noted in Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567, at 578, in determining whether there is a real chance that an applicant will be persecuted for a Convention reason, the RRT has no choice but to form an opinion as to what is likely to occur if the applicant is returned to his or her country of nationality.  Their Honours continued (at 579):

“Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing.  In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future.  It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.”

In a number of cases it has been held that the RRT, or some other tribunal, failed to comply with the duty imposed by s 430(1) of the Migration Act or equivalent legislation to give reasons and to make findings of fact.  The cases include Muralidharan (where it was held (at 415) to be “impossible to ascertain…what process of reasoning was adopted by the [RRT]”; Abdalla (where the RRT’s reasons “failed to address a submission of central importance” (at 12)); and Baxter Healthcare Pty Ltd v Comptroller-General of Customs (1997) 72 FCR 467 (FC) (where a majority, Moore and Merkel JJ; Burchett J dissenting, held that the Administrative Appeals Tribunal had failed to set out its reasoning on a critical issue).

Reasoning

Gaps in the RRT’s Reasons

The first step in assessing the applicant’s arguments on the appeal is to examine the reasons given by the RRT for finding that he did not have a well-founded fear of persecution in the Convention sense.  In this connection, a number of points should be made about the key passage in the RRT’s reasons.

First, it is unclear to what extent, if at all, the RRT rejected the applicant’s account of the relevant events.  The RRT made no explicit finding about the applicant’s credit or the plausibility of his version of events.  Indeed, it made no comment at all on these questions, except to note, in neutral terms, that his version changed in certain respects between his primary application and his evidence to the RRT.  The RRT specifically accepted that, as the applicant had claimed, his family’s shop had been destroyed in 1992 by members of the Sunni majority.  It also specifically accepted that he had been “beaten up by unknown assailants”, presumably in 1994.  The RRT did not expressly reject any portion of the applicant’s account as presented to the RRT.

Secondly, the RRT made no findings in relation to many of the crucial aspects of the applicant’s account.  The applicant claimed that the violence in 1992 had occurred because the perpetrators, members of the Sunni majority, disapproved of the leading role played by the applicant’s father in organising the annual Moharran procession.  The RRT did not address that claim, which goes to the very heart of the issue identified by the Full Court in Abdalla, namely the purpose underlying the violence.  Similarly, the RRT made no explicit finding on the applicant’s claim that members of the Sunni majority had assaulted him in 1994 and that they had done so during preparation for the annual Moharran procession.

Thirdly, the RRT did not explain why it considered (as it apparently did) that the two incidents of violence could be characterised as “incidental violence as a result of civil or communal disturbances”.  Did the RRT base this conclusion on an unexpressed finding that the violent incidents had nothing to do with the religious affiliations of the applicant or his father?  For example, were they merely random victims of endemic violence?  If so, how is such a finding to be reconciled with the RRT’s explicit finding that members of the Sunni majority had burned down the family shop in 1992?

Alternatively, did the RRT regard the two “incidents of violence” as merely isolated examples of sectarian violence in the Punjab and therefore not sufficiently “systematic” to amount to persecution for reasons of religious belief?  If so, was this conclusion based on the proposition that, unless the applicant himself had been systematically harassed, he could not have experienced persecution in a Convention sense?  Or did the RRT mean to say that the Sunni majority (or extreme elements within the Sunni community) had not systematically harassed the Shia community and thus the applicant could not establish that there was a real chance that he would be persecuted for religious reasons on his return to Pakistan?

Fourthly, the RRT made no finding about the applicant’s evidence that his uncle had been shot and killed during a Shia religious procession.  The RRT noted that the applicant’s account of his uncle’s death had changed, but did not say whether that circumstance, or others, led it to reject his evidence that his uncle had been killed during a religious procession.

Fifthly, the RRT appears to have assumed that, if the two incidents of violence were not part of a course of systematic harassment and therefore did not constitute “persecution”, it followed that the applicant could not have a well-founded fear of persecution in the future.  The RRT did not explain why one proposition inexorably followed from the other, bearing in mind that, as Hill J said in Mohamed, an individual may have a well-founded fear of persecution even if he or she has suffered only an isolated act of persecution or none at all.

Did the RRT Comply with its Statutory Duty?

Confronted with these difficulties, Mr Johnson, in a helpful argument, put forward a construction of the RRT’s reasons that he submitted conformed to the beneficial approach required by Minister v Wu.  He contended that the RRT, although it made no express findings as to the applicant’s credit, was not satisfied that either of the two violent incidents had anything to do with the applicant’s religious beliefs or affiliations.  The RRT merely found that in 1994 the applicant had been “beaten up by unknown assailants”.  Since the RRT made no reference to the applicant’s claim that his assailants were Sunni Muslims, the RRT must be taken to have rejected that claim.  In short, Mr Johnson submitted that the RRT was not satisfied that the 1994 incident was anything other than a random act of violence unconnected with the victim’s religion or religious affiliation.

Mr Johnson took a similar approach to the 1992 incident.  While he acknowledged that the RRT had found that the perpetrators were Sunni Muslims, he submitted that it could not have been satisfied that the incident occurred because of the religious beliefs and affiliations of the applicant or his family.  The RRT was not required to make specific findings on all the factual assertions raised by the applicant.  It was enough to state its conclusions in a general way.

Mr Johnson is, of course, correct in insisting that the RRT’s reasons be construed beneficially.  If, for example, the RRT has neglected to say why it prefers one witness over another, it may be clear enough from the reasons as a whole why it did so: Commonwealth v Borg (1991) 20 AAR 299 (FC), at 309, per Jenkinson J.  Similarly, if the reasons are ambiguous, or even internally inconsistent on a particular issue, a generous reading may permit the Court to say that it has complied with the duty imposed by s 430(1) of the Migration Act: Zayout v Minister for Immigration and Multicultural Affairs, unreported, 30 October 1998, Hill J.

If the RRT’s reasons are given a beneficial construction, not all the ambiguities or gaps I have identified in its reasoning can be regarded as a failure to comply with its statutory duty to set out its reasons and its findings on material questions of fact.  The absence of a finding concerning the death of the applicant’s uncle might be explained on the basis that the RRT, having regard to the applicant’s altered account on that issue, was not satisfied that the uncle had been killed for religious reasons.  The RRT’s failure to explain the link between its finding that the applicant had not been persecuted in the past and its conclusion that he faced no real chance of persecution for a Convention reason on his return to Pakistan, could well be regarded as mere looseness of expression.  A fair reading of the reasons as a whole might support the conclusion that the RRT was aware that it was required to consider whether the applicant faced a real chance of persecution on his return to Pakistan and that its role was not limited to an assessment of past events.

Nonetheless, accepting fully the need for a beneficial construction of the RRT’s reasons, a fundamental difficulty remains in the path of Mr Johnson’s submissions.  The difficulty is that, in my opinion, they do not merely reflect a beneficial approach to the construction of the RRT’s reasons.  They amount to a rewriting of these reasons to fill in gaps in the RRT’s reasoning and fact-finding.

In my view, even on the most beneficial construction of the RRT’s reasons, it is not possible to conclude that the RRT intended to make the findings attributed to it by Mr Johnson.  Those findings may have been open to the RRT on the evidence.  However, that is not the question.  As I have already pointed out, the RRT neither said that it rejected material portions of the applicant’s account, nor gave reasons for taking such a course.  On the contrary, it explicitly accepted the applicant’s account on one important issue, namely that the 1992 incident was perpetrated by members of the Sunni majority.  This is not a case where it can be inferred from the reasons, taken as a whole, that the RRT must have rejected the applicant’s account.  The issue is simply not addressed.

Nor is it possible to overlook the fact that the RRT also failed to make findings on critical questions.  As the High Court noted in Guo, it was an integral part of the process of assessing the chance that the applicant would be persecuted in the future to reach conclusions about past events.  The RRT recognised as much by referring to the two violent incidents of 1992 and 1994, upon which the applicant had relied.  But it made no factual findings about the purpose or motivation underlying those incidents, notwithstanding that this issue was at the heart of the applicant’s claims.  The RRT merely referred in general terms to the distinction between persecution and civil unrest and the importance of a course of systematic harassment.  A critical factual issue remained unresolved.

Moreover, the RRT’s reasons do not make it clear what significance it attributed to the absence of “a course of systematic harassment”.  The reasons are consistent with the RRT having held that there can be no persecution of an individual unless he or she has been subjected to systematic harassment.  Such a test would infringe the principles laid down in Abdalla and Mohamed.  It is, however, possible that the RRT intended to apply the “systematic” test only in relation to harassment directed against Shia Muslims generally.  The difficulty is that the reasons, having regard to the absence of findings on key factual questions, do not identify clearly which test the RRT intended to apply.

In Rich Rivers Radio Pty Ltd v Australian Broadcasting Tribunal (1989) 22 FCR 437 (FC), a case involving legislation similar to s 430(1) of the Migration Act, the Court expressed (at 444) its agreement with observations made by Wilcox J in Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No 1) (1987) 16 FCR 465, at 483:

“What was required, in his Honour’s view, was: ‘that the tribunal set out in short and measured, but specific, terms its findings in connection with’ the matters relevant to its decision so that, to use the language of Woodward J in Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500 at 507, the person seeking review of the decision may say in effect:

            ‘Even though I may not agree with it, I now understand why the decision went against me.  I am now in a position to decide whether that decision has involved an unwarranted finding of fact, or an error of law, which is worth challenging.’”

In my opinion, the reasons of the RRT do not satisfy the test implicit in this passage.  They do not enable the applicant, with the benefit of appropriate advice, to understand why the decision went against him.  It is simply unclear why his claim failed. 

It follows, in my opinion, that the RRT failed to comply with its obligation under s 430(1) of the Migration Act to set out the reasons for its decision and its findings on material questions of fact.  The ground of review provided for in s 476(1)(a) of the Migration Act has been made out.  There is therefore no need to consider separately the applicant’s contention that the RRT applied the wrong test for determining whether the applicant had suffered persecution in Pakistan.

Should the Case be Remitted?

The finding that the applicant had not suffered persecution in the past was clearly the basis for the RRT’s conclusion that he did not have a well-founded fear of persecution if he were to return to Pakistan.  However, the RRT added a comment that, although neither of the two incidents was investigated by the police to the applicant’s satisfaction, that failure did not lead the RRT to conclude that the authorities would be unable or unwilling to protect the applicant from persecution.

The RRT’s comment was made in a single sentence, in a context where it had already decided that the applicant had not suffered persecution in the Convention sense.  The RRT did not explain the basis for its conclusion that the authorities would be able to protect the applicant.  It had quoted from the DFAT cable earlier in its reasons, but it is by no means clear that the cable supported the conclusion expressed by the RRT.  In any event, the RRT may well have expressed a different view on the issue of police protection, had it not already decided that the applicant had not suffered persecution.

In these circumstances, it is appropriate that the matter be remitted to the RRT.

Conclusion

The RRT failed to comply with its statutory obligation to set out the reasons for its decision and the findings on material questions of fact.  The decision of the RRT should be set aside and the matter remitted to the RRT, differently constituted, for determination according to law.

Associate:

Dated:              17 December 1998