FEDERAL COURT OF AUSTRALIA

SZCUW v Minister for Immigration & Multicultural Affairs [2006] 1631

SZCUW v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 1398 OF 2006

EDMONDS J

28 NOVEMBER 2006

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

Introduction

1                     This is an appeal from the Federal Magistrates Court (Driver FM): [2006] FMCA 563 dismissing an application for review of a decision of the second respondent (‘the Tribunal’) affirming a decision of a delegate of the first respondent (‘the Minister’) to refuse to grant the appellant a protection visa.

Background

2                     His Honour adopted the following background information from the respective written submissions filed below:

(1)               On 2 July 1992 the appellant, a 51 year old citizen of Pakistan, arrived in Australia.

(2)               In March 1996 the appellant applied for a protection visa.

(3)               In July 1996 the appellant attended an interview by the Minister’s delegate.

(4)               On 22 July 1996 a delegate of the first respondent refused the grant of a protection visa.  On 8 August 1996 the appellant applied for a review of the delegate’s decision by the Tribunal. 

(5)               On 30 October 1997 the appellant attended a Tribunal hearing at which he gave evidence.  On 16 December 1997 the Tribunal handed down a decision made on 15 December 1997 affirming the delegate’s decision not to grant a protection visa.

(6)               Between 24 October 1997 and 20 February 2004, the appellant pursued various class actions including the Rosco class action in this Court and the High Court, and the Muin & Lie class action in the High Court (later remitted to this Court where it concluded).

(7)               Following the conclusion of the Muin & Lie class action on 20 February 2004, the appellant thereafter commenced the present proceedings on 27 February 2004. 

The Tribunal’s Decision

3                     His Honour summarised the Tribunal’s findings and reasons for decision in the following terms:

1.                  The Tribunal found the appellant to be an unsatisfactory witness and made an adverse credibility finding in respect of his evidence.

2.                  The Tribunal accepted that the appellant had joined the Mohajir Quami Movement (‘the MQM’) in 1985 but that he was only ever an ordinary member of the MQM.

3.                  The Tribunal did not accept the following claims of the appellant on the basis of its adverse credibility finding in respect of him:

(a)                that the appellant had been arrested on 26 February 1990;

(b)                that the appellant had been in hiding from police from February 1990 to July 1992 when he came to Australia;

(c)                the appellant’s account of his activities between his return to Pakistan on 9 May 1991 and his departure for Australia in July 1992 (although it accepted that he had been at sea between 20 June 1990 and 9 May 1991).

4.                  The Tribunal rejected a number of the appellant’s claims on the basis of inconsistencies between the appellant’s written claims (and departmental interview) and his oral evidence, together with instances of the appellant’s fresh claims at hearing which had been omitted from his protection visa application.

5.                  The Tribunal found that the appellant was a member of the MQM who would continue to do work for that movement when he returned to Pakistan but did not accept that the appellant had held any office in the movement or that he had been arrested or that there was a First Information Report (‘FIR’) outstanding against him.  Accordingly the Tribunal did not accept that the appellant would be arrested, imprisoned or killed in a faked encounter when he returned.

6.                  The Tribunal did not accept that the Pakistani government or its agencies were conducting an operation against members of the MQM or that it encouraged, condoned or was powerless to prevent the murder of the MQM members by a rival group (or that conflict between the MQM and the rival group constituted persecution).

7.                  The Tribunal found accordingly that the appellant did not have a well-founded fear of persecution by reason of his involvement with the MQM.

8.                  In respect of the appellant’s claim to fear persecution in the form of racial discrimination there was nothing on the evidence before the Tribunal (nor had the appellant submitted) that he had suffered discrimination as a Mohajir in relation to either education or employment.  Accordingly the Tribunal found the appellant not to have a well-founded fear of persecution in respect of the discrimination claim either.

the Court Below

4                     The main ground of appeal agitated below was that the Tribunal erred by finding that a systematic quality was necessary in order to constitute persecution for the purposes of the Convention.  It was submitted on behalf of the appellant that this finding was contrary to the principles stated in Minister for Immigration v Haji Ibrahim (2000) 204 CLR 1 in which McHugh J clarified his earlier comments in Chan Yee Kin v Minister for Immigration (1989) 169 CLR 379 at 430 as to what he had meant by the term ‘systematic’.

5                     The Tribunal’s decision in the instant case was made in 1997 and accordingly, predates the decision in Ibrahim.  This is a similar scenario to that which confronted Sackville J in SZHJR v Minister for Immigration [2006] FCA 203 at [26].

6                     The Minister submitted that the reference to ‘strife’ between the MQM and a ‘breakaway’ group is similar to the finding in SZHJR at [28] in that the Tribunal was attempting to convey that it was low level and was not of a kind which was significant enough to constitute persecution.  However, even if the Tribunal did make a mistake of law, that does not necessary mean it was a jurisdictional error:  see SZHJR at [31].

7                     The Minister further submitted that this was because there was a separate independent basis as to whether the Pakistani government was unable to provide protection in respect of the feuding.

8                     His Honour below set out what the presiding member of the Tribunal had said on the issue (at [25]):

‘The simple fact of the matter is that, as indicated in the material which I forwarded to the Applicant prior to the hearing, feuding between the mainstream MQM and the breakaway Haqiqi faction continues to be a problem in Karachi (Amir Zia, “Pakistan: Pakistan’s Rival Ethnic Factions Keep Karachi Tense”, Reuter Business Briefing, 18 May 1997).  However I do not consider that the threat posed to the Applicant as a member of the mainstream MQM by this type of feuding between the two political factions comes within the concept of “persecution” for the purposes of the Convention.  As McHugh J emphasised in Chan, referred to above, at 430, in order for the threatened harm to constitute “persecution” for the purposes of the Convention, it must be able to be seen a “part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class”.  I consider that the internecine strife between the mainstream MQM and the breakaway Haqiqi group lacks the systematic quality that is inherent in the concept of “persecution” for the purposes of the Convention.’

9                     His Honour went on to say that the key to the resolution of the case was to analyse the presiding member’s reasons in the passage just quoted.  The appellant asserted that the Tribunal erred in applying the principles set out by McHugh J in Chan having regard to his Honour’s clarification of that principle in Haji Ibrahim at [60] – [61].  There McHugh J said that his earlier statement in Chan suggests that a person is persecuted within the meaning of the Convention whenever the harm or threat of harm ‘can be seen as part of a course of systematic conduct … directed for a Convention reason against that person as an individual or as a member of a class’ and continued:

‘Read literally, this statement goes too far.  It would cover many forms of selective harassment or discrimination that fall short of persecution for the purpose of the Convention.  Moreover, it does not go far enough, if it were to be read as implying that there can be no persecution unless systematic conduct is established.

Given the objects of the Convention, the harm or threat of harm will ordinarily be persecution only when it is done for a Convention reason and when it is so oppressive or recurrent that a person cannot be expected to tolerate it. This accords with the discussion of what constitutes a "well-founded fear of persecution" in par 42 of the Handbook On Procedures And Criteria For Determining Refugee Status issued by the Office of the United Nations High Commissioner for Refugees …’

10                  His Honour then observed that two things need to be clarified in relation to McHugh J’s comments.  The first is that the debate in Haji Ibrahim concerned the question of whether it was necessary for an applicant to establish a differential impact upon him or her of harm, over and above a broader group of persons, in order to establish persecution.  He observed that McHugh J was in dissent on that issue, finding that it was an error of law to decide that the applicant was not persecuted because he could not show that civil unrest had a differential impact on him or because the harm that he faced was merely an ordinary risk of clan warfare.  Secondly, his Honour said it was not clear what the presiding member meant when he said that the internecine strife between the mainstream MQM and the breakaway Haqiqi group lacked the systematic quality ‘that is inherent in the concept of persecution’ for the purposes of the Convention.  His Honour then went on to say (at [27]):

‘What I think the presiding member meant, upon reading the relevant passage in the context of the reasons as a whole, is that the internecine strife within the MQM was sporadic and unpredictable and hence did not constitute persecution.  Viewed in that light, the presiding member’s finding is not necessarily inconsistent with the clarification by McHugh J in Haji Ibrahim.  The risk of harm may be so sporadic and unpredictable that it cannot be found to be so oppressive or recurrent that a person cannot be expected to tolerate it.’

11                  His Honour then went on to observe that Sackville J had considered this issue in SZHJR.  His Honour observed that Sackville J reached a similar conclusion to him in relation to the first of three references to systematic conduct in that case at [27].  His Honour then said:

‘In addition, in this case as in SZHJRat [31] the decision is supported by an alternative finding, in this case that effective State protection was available in Pakistan to protect the applicant from the risk of harm posed by the internecine MQM strife, should it constitute persecution.’

12                  For these reasons, and having disposed of the other grounds of appeal at [21] – [23], his Honour found that the decision of the Tribunal was free from jurisdictional error.

Appeal to this Court

13                  At the commencement of the hearing of the appeal I granted the appellant leave to file an amended notice of appeal containing three grounds, only the first and third of which are relied upon.

14                  The first was framed in the following terms:

‘1.        His Honour erred in law in finding that the Tribunal decision “is supported by an alternative finding … that effective State protection was available in Pakistan to protect the applicant form the risk of harm posed by the internecine MQM strife, should it constitute persecution” where the concept of State protection [the] for purposes of the Refugees’ Convention Article 1A(2) includes not only recognition of [the] basic human rights of citizens but also the existence of institutions and mechanisms by which the citizen may assert such [a] right and have it enforced.’

15                  The third was in the following terms:

‘3.        His Honour further committed an error law in finding the decision of the Second Respondent “free from jurisdictional error” in circumstances where it was neither reasonably open to the second respondent nor was there any basis for his Honour finding that what the second respondent “meant … is that the internecine strife between the mainstream MQM was sporadic and unpredictable and hence did not constitute persecution”.’

16                  Both the appellant and the Minister dealt with ground 3 first, the Minister further submitting that the appellant would have to establish error on both grounds of appeal to succeed.  I think this must be correct.

17                  Ground 3 of the appellant’s notice of appeal effectively asserts that his Honour erred in law in interpreting what the Tribunal said in the extract quoted at [8] supra ‘…that the internecine strife between the mainstream MQM and the breakaway Haqiqi group lacks the systematic quality that is inherent in the concept of “persecution” for the purposes of the Convention’ – as meaning that the internecine strife within the MQM was sporadic and unpredictable and hence the risk of harm could not be found to be so oppressive or recurrent that a person could not be expected to tolerate it.  I am unable to discern why this construction by his Honour of the Tribunal’s words is infected with legal error and with respect, the appellant’s counsel never satisfactorily explained why it was.  It seems to me to be an entirely reasonable interpretation of an ordinary English word – ‘systematic’ – and one which is consistent with McHugh J’s revised phraseology in Haji Ibrahim.

18                  In this regard, what was said by a Full Court of this Court in Chopra v Minister for Immigration & Multicultural Affairs [1999] FCA 480 at [45] – [48] and at [55] – [59] is instructive:

‘We are not persuaded that the Tribunal’s reasons for decision, when read fairly, and not scrutinised upon over zealous judicial review, in accordance with the principles laid down by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [(1996) 185 CLR 259] are in any way inconsistent with the principles laid down by the Full Court in [Abdalla v Minister for Immigration & Multicultural Affairs (1998) 51 ALD 11].  In our view, the Tribunal found essentially that the situation in India today did not justify the conclusion that the incidence of communal violence in that country was any more than “sporadic”.  The severity and extent of harm flowing from such violence as occurred from time to time was “unpredictable”. 

This finding, read in context, was tantamount to a finding that this communal violence was essentially “random” in nature.  “Random” violence is not merely “non-systematic”.  It is also “non-selective”.  It is, therefore, “non-purposive”.  Such violence does not, in our view, meet the test for “persecution” laid down in Abdalla.

The Tribunal did not, in our opinion, fall into the error of having treated “systematic persecution” as a necessary prerequisite for a successful claim to refugee status.  When its reasons for decision are closely examined, and individual sentences are not read out of context, it is clear that the Tribunal used the word “systematic” not as requiring the appellant to show a series of coordinated acts directed against him, or against the group of which he was a member, but rather to distinguish the religious tensions and sporadic violence which it found to occur (which was “non-selective”, “non-purposive” and, in effect, “random”) from the type of group harassment that could be said to be “selective”, “recurring” and “purposive”, and referable therefore to a Convention ground.  There was no error, in our view, in the Tribunal approaching the matter in that way. 

It is clear that the mere use by the Tribunal of the word “systematic” does not, of itself, invalidate a decision refusing a protection visa – see Perampalam v Minister for Immigration and Multicultural Affairs (1998) 158 ALR 609 at 615 per Hill J. 

…

We do not consider that the Tribunal in the present case elevated the expression “a course of systematic conduct” into a legal standard or determining criterion which had to be met by the appellant.  Nor did the Tribunal use the term “systematic” to signify “habitual  behaviour according to a system, regular or methodical” – cf [Ibrahim v Minister for Immigration & Multicultural Affairs [1999] FCA 374].  Rather, in context, the Tribunal used that expression only to indicate that, unlike the situation in a number of the Somali cases, the communal violence in the present case was sporadic, and unpredictable.  In other words, the Tribunal found, in effect, that there was “a paucity of acts or occurrences relied on” by the appellant, (to use the language of the Full Court in [Hamad v Minister for Immigration & Multicultural Affairs (1998) FCA 1395]), and those acts or occurrences were essentially “random” in nature, rather than relevantly “selective”.  The acts were not “deliberate or premeditated or intended” – Ibrahim (supra) at par 25.

There was, in our view, no error in that approach by the Tribunal.  Nor did Lockhart J err in upholding the Tribunal’s findings.  It is instructive to note that his Honour’s judgment in this very case was cited by the Full Court without any apparent disapproval in Ibrahim (supra) at par 26.  That is significant because Ibrahim turned upon whether or not the use of the expression “systematic conduct” in that case vitiated the Tribunal’s decision.  There it had, but the Full Court plainly did not think that this would inevitably be so.

It goes without saying that the Tribunal must avoid suggesting that an isolated act against an individual, which is not part of any systematic conduct against a group, cannot amount to persecution. In [Mohamed v Minister for Immigration & Ethnic Affairs [1998] FCA 485] Hill J found that the Tribunal had made that error.  Its decision was, therefore, set aside.  The Tribunal in the present case, and Lockhart J, did not, however, fall into that error.  The Tribunal simply rejected the appellant’s contention that such violence as had been directed against him in the past was the result of his religious or political views, and Lockhart J discerned no error in that finding.

The Tribunal’s use of the term “systematically” in the context of the appellant’s “group” claim was limited to treating its non-systematic character as relevant to that claim.  This was appropriate, and conforms with what the authorities have held to be permissible.’

19                  In my view, there is no error of law in his Honour coming to the conclusion he did on how the words ‘systematic quality’, in the context of the Tribunal’s finding that the relevant internecine strife lacked the ‘systematic quality’ to qualify as ‘persecution’, are to be interpreted, and the appeal cannot be sustained on this ground.

20                  Ground 1 of the appellant’s notice of appeal challenges his Honour’s finding at [28] that the Tribunal’s decision is supported by an alternative finding ‘… that effective State protection was available in Pakistan to protect the applicant from the risk of harm posed by the internecine MQM strife, should it constitute persecution’.  It is asserted that this finding is infected with legal error on the basis that there is no probative material to support the Tribunal’s finding or that there is no basis for making such a finding in circumstances where:

i.                     The Tribunal found ‘that Government of Pakistan is taking steps to deal with the continued civil unrest in Karachi … [including] retention of the presence of the paramilitary rangers in the city’.

ii.                   The Tribunal further found ‘that the Government of Pakistan has … intervened in a positive manner to deal with the continuing violence in Karachi’.

iii.                  However, the Tribunal found that the Government ‘has refused to accede to demands by the MQM to withdraw the Rangers from Karachi … [notwithstanding] … that … the Rangers previously supported the Haqiqi faction’.

iv.                 There was no finding by the Tribunal that the measures taken by the Pakistani Government (albeit positive) were effective in clamping down on civil unrest and the targeting of MQM workers.

v.                   In fact country information relied upon by the Tribunal merely confirmed that the President and the Prime Minister indicated to Senator Nasreen Jalil ‘that the Government and its agencies were not sponsoring the Haqiqi group, and that similar assurances had been given to the leader of the MQM’.

vi.                 Despite a 1992 accord between the MQM and the Government of the day, ‘“Operation Clean-up” had still be launched’ resulting in extrajudicial killings of many people.

Reference was also made to the particulars provided in relation to ground 3.

21                  But in its findings and reasons, the Tribunal went on to say:

‘Moreover it is necessary in this context [the context of internecine strife between the mainstream MQM and the breakaway Haqiqi group] to consider whether this feuding is officially tolerated by the Government of Pakistan or, in the alternative, whether the Government of Pakistan is unable to protect its own citizens from the consequences of the feuding.  As McHugh J stated in [Applicant A v Minister for Immigration & Ethnic Affairs (1997) 142 ALR 331], referred to above, at 354:

“The Convention is primarily concerned to protect those racial, religious, national, political and social groups who are singled out and persecuted by or with the tacit acceptance of the government of the country from which they have fled or to which they are unwilling to return.  Persecution by private individuals or groups does not by itself fall within the definition of refugee unless the State either encourages or is or appears to be powerless to prevent that private persecution.”

For reasons given above I consider that the killing of MQM workers in Karachi is not encouraged or condoned by the Government of Pakistan.  Equally, I do not consider that the Government of Pakistan is powerless to prevent such attacks on MQM workers.  To the contrary, the evidence is that the Government of Pakistan is taking steps to deal with the continued civil unrest in Karachi.  Those steps include the retention of the presence of the paramilitary Rangers in the city, already referred to above, and the introduction of a new Anti-Terrorism Act giving enhanced powers to the law enforcement agencies to deal with terrorist acts (Raja Zulfikar, “President Okays Anti-Terrorism Bill Into Act”, Dawn Wire Service, 23 August 1997).  I therefore reject the submission of the Applicant’s representative that the Government of Pakistan has not intervened in a positive manner to deal with the continuing violence in Karachi.’

22                  The Minister submitted that given those findings it was well open to his Honour to find as he did at [28] that the Tribunal’s decision is supported by an alternative finding that effective State protection was available in Pakistan to protect the appellant from risk of harm posed by the internecine MQM strife should it constitute persecution.  I agree.

23                  For these reasons, the second ground of appeal cannot be sustained.

24                  The appeal must be dismissed with costs.

Associate:

Dated:         28 November 2006