FEDERAL COURT OF AUSTRALIA

SZDRY v Minister for Immigration & Multicultural &
Indigenous Affairs [2005] FCA 993

SZDRY v MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS

NSD 336 OF 2005

LINDGREN J

8 JULY 2005

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The appellant pay the respondent’s costs.

3.         The operation of orders 1 and 2 be suspended until Tuesday, 19 July 2005.

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

Introduction

1                     The appellant appeals from a decision of the Federal Magistrates Court of Australia (‘FMCA’) given on 24 February 2005 (SZDRY v Minister for Immigration [2005] FMCA 155).  The FMCA dismissed an application for review of a decision of the Refugee Review Tribunal (the Tribunal) dated 22 June 1998.  By that decision, the Tribunal affirmed a decision of a delegate of the respondent Minister (respectively, ‘the Delegate’ and ‘the Minister’) not to grant to the appellant a protection visa.

2                     The appellant, a citizen of Pakistan, arrived in Australia as a student on 12 July 1996.  On 23 January 1997 she lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs (‘the Department’) under the Migration Act 1958 (Cth) (‘the Act’).

3                     On 17 June 1997 the Delegate refused to grant the visa.  On 7 July 1997, the appellant applied to the Tribunal for review of the Delegate’s decision.  The appellant gave evidence at a hearing before the Tribunal on 10 June 1998.

Background facts

4                     The appellant was born in Lahore on 15 February 1973, and lived at the same address there from 1987 to 1995.  She was educated in Lahore and obtained an Arts Degree in 1993.  The appellant has not been employed.  Her claim for protection was based on the fact that she is a Shi’a and that her husband and his father were leaders in the Shi’a community.  In general, her claim was that she had a well-founded fear of persecution on religious grounds as a result of the activities of militant Sunni organisations.

5                     The appellant advanced a number of claims which were not accepted as demonstrating persecution for a Convention reason, but it is only that based on religious grounds which remains relevant.

The Tribunal’s reasons

6                     The Tribunal reviewed the appellant’s claims, including those made at the hearing.  The Tribunal did not accept the claim that the appellant would be harmed if she and her husband returned to Pakistan because the husband was prominent in the Shi’a community.

7                     The appellant’s husband came to Australia in 1990. He lived here for four years’ returned to Lahore to see his ailing father in November 1994’ married the appellant in January 1995, and then returned to Australia where he has lived since then.

8                     The Tribunal referred to the fact that the husband had made just one speech in relation to the Shi’a/Sunni conflict in mid December 1994 which lasted 10 minutes and was confined to generalities about community violence.  The Tribunal found that the husband did not participate in any other political activities associated with the Shi’a community or any radical Shi’a organisation.  The Tribunal stated:

‘In my view, this is not the kind of profile of political activity that would make the husband and hence his wife, the applicant, targets for Sunnis in Lahore.’

9                     The Tribunal did accept that civilians in Pakistan are at risk of becoming victims in the context of sectarian violence.  The member referred to feuding between extremist elements of the Sunni Sipeh-I-Sahaba Pakistan (‘SSP’) and Shi’a organisations.

10                  The Tribunal member accepted that that sectarian feuding continued to be a problem in Pakistan.  In a passage which was attacked by the solicitor who appeared for the appellant on the appeal, the member stated (at 12):

‘I do not accept that the internecine violence involving militant Sunni and Shiite organisations such as the SSP and the Lashkar-I-Jhangvi on the one hand, and the TNFJ and the SMP on the other, provides a basis for concluding that either the Sunni community or the Shiite community is engaged in a course of systematic conduct directed against the other community which could be characterised as “persecution” for the purposes of the Convention (see [Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379] at 430 per McHugh J).’  (my emphasis)

11                  The Tribunal also stated that there was no evidence that the Government of Pakistan condoned the sectarian violence between extremist groups.  On the contrary, according to the Tribunal, the evidence indicated that the Government was taking concrete measures to keep it under control, including the passing of a new Anti-Terrorism Act giving enhanced powers to the law enforcement agencies.

12                  In a passage which seems to me to be determinative of the appeal, the Tribunal stated (at 12-13):

‘Because of my finding that the applicant's husband has not had and does not have a political profile of any significance in Pakistan, and because there was no evidence that the applicant herself suffered any form of harm or harassment because she was a Shi’a, ... I am not satisfied that she has a well founded fear of persecution for a Convention reason, now or in the reasonably foreseeable future, if she returns to Pakistan.’

The application for review

13                  The appellant applied to the FMCA for review of the Tribunal’s decision.  Certain issues which were argued before the learned Federal Magistrate have not been pursued on the present appeal.  The Federal Magistrate was not persuaded that the Tribunal had misunderstood the meaning of the word ‘persecution’ within the Convention.  His Honour concluded that no jurisdictional error had been established.

The present appeal

14                  On the appeal, the appellant presses only the ground that the Federal Magistrate erred in not holding that the Tribunal had made a jurisdictional error by wrongly understanding the meaning of the notion of ‘persecution’.

15                  The ground of appeal sets out the passage from the Tribunal’s reasons which I set out at [10] above.  On the hearing of the appeal, Mr Silva, solicitor, who appears for the appellant, has directed his submissions to this passage in an attempt to show that the Tribunal member erred in his understanding of the notion of ‘persecution’.  In summary, the argument is that the member looked for ‘systematic conduct’ in the sense of regular or repeated conduct.  Such conduct is to be distinguished from conduct that is deliberate or directed.

16                  The appellant’s solicitor referred to Chopra v Minister for Immigration & Multicultural Affairs [1999] FCA 480 at [55], where Minister for Immigration and Multicultural Affairs v Ibrahim (2000) 204 CLR 1 at [25] is referred to. 

17                  I do not find it necessary to explore this issue fully.  The reason is that on the appeal, the solicitor for the appellant accepted that his client’s claim depended upon the husband’s profile rather than simply the appellant’s position as a Shi’a.  The way in which Mr Silva put the matter is that his client’s husband has ‘some’ profile as a member of the Shi’a community and can expect to be targeted for that reason.  Underlying that submission is an acceptance of the fact that the appellant herself, as an ordinary member of the Shi’a community with no profile whatever, is not a person who, alone, would attract persecution.

18                  The answer to the appellant’s submission, therefore, is the Tribunal’s finding that the appellant’s husband ‘has not had and does not have a political profile of any significance in Pakistan’.  That finding, supported by factual matters referred to by the Tribunal, indicates that there is no substance in the kind of claims which the appellant made before the Tribunal.  Even if the member misunderstood in some way the meaning of the word ‘persecution’, the appellant accepts that unless her husband has ‘some’ (this must mean ‘some significant’) profile as a member of the Shi’a community, she would not be able to establish a well-founded fear of persecution on religious grounds.

19                  I should add, however, that I am not persuaded that the Tribunal erred in the way suggested.  It is true, as Mr Silva says, that one should not draw too much from the fact that quite early in the Tribunal’s reasons for decision, the Tribunal member acknowledged that persecution can include ‘single acts of oppression’, but I do not think that a fair reading of the reasons for decision suggests that the Tribunal member misunderstood the nature of persecution.  In the passage which Mr Silva attacks, the member used the expression ‘a course of systematic conduct’ to refer to a course of targeted or deliberate or selective conduct.  In fact, in the very passage in question, the member spoke of a ‘course of systematic conduct directed against ...’.  (my emphasis)  The member did not use the expression to refer to a course of regular or methodical conduct.

20                  I do not think that the Tribunal member misunderstood the nature of persecution or that any misunderstanding of that notion is exposed by his use of the word ‘systematic’ in the passage referred to.

Conclusion

21                  For the reasons mentioned above, the appeal should be dismissed with costs.  Since there will be a little unavoidable delay in the editing of the written form of these reasons, I will suspend the operation of the orders until 19 July 2005. 

Associate:

Dated:              21 July 2005