FEDERAL COURT OF AUSTRALIA

SZQZG v Minister for Immigration and Citizenship [2013] FCA 249

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1    This is an appeal from a decision of the Federal Magistrates Court refusing the appellant constitutional relief in respect of a decision by the Refugee Review Tribunal that affirmed a decision of a delegate of the Minister not to grant the appellant a protection visa on 16 November 2011: SZQZG v Minister for Immigration [2012] FMCA 858.

Amendment of the notice of appeal

2    The appellant represented himself before the trial judge and advanced a number of grounds upon which he sought relief. He has secured pro bono representation by counsel in the appeal, and she has prepared an amended notice of appeal raising one ground that had not been clearly articulated before his Honour. Nonetheless, his Honour, in his reasons, gave some attention to the possibility that the then unrepresented appellant may have had an arguable point that required consideration in the interests of justice.

3    I granted leave to the appellant to amend his notice of appeal to raise that ground, although, in fairness to his Honour, the error claimed was not one that his Honour was required to address. The ground argued that the tribunal committed a jurisdictional error by failing to consider an integer of the appellant’s claims, namely, that he was a member of a particular social group, being persons victimised by individuals with political power and/or connections.

Background

4    The appellant was a citizen of Pakistan who last arrived in Australia on 15 February 2011. He applied for a protection visa on 4 March 2011. The detailed identification of the appellant’s claims, as articulated to the delegate, and before the tribunal, were summarised by his Honour. The appellant married his wife in November 2009 and then became aware that another man, called Usman, wanted to marry her, but her parents had refused. Usman had been working in Saudi Arabia. The appellant claimed that about two months after the marriage, Usman had returned to Pakistan. The appellant said that he had been told that Usman had worked for terrorist organisations in Pakistan and foreign countries. He claimed that Usman had tried to take his wife away from him forcibly and that Usman had been supported by a local Muslim cleric.

5    After the appellant’s wife fell pregnant, the appellant claimed, his problems became more aggravated and he left the country to study overseas, here, with a view to sponsoring his wife as well. He claimed that before leaving, he had been beaten up by Usman and a group of armed men who had come to his parents’ residence, where he was with his wife. He claimed that Usman threatened to kill him if his wife did not come out of hiding and that when she presented herself, she confirmed she was pregnant, upon which Usman and the others left. He claimed that later that evening he was attacked by the same group of men, beaten with a bicycle chain and sharp iron rods and that they threatened to kill him if he stayed in Pakistan any longer.

6    When the appellant’s parents sought to file a complaint at the police station, the police told them that if he wished to remain alive, they should not file any charges and that Usman was a notorious criminal with political influence, capable of killing all of them if they complained. The appellant also asserted that his parents approached the local cleric who had told them that Usman had threatened to kill the appellant if he failed to divorce his wife.

7    The appellant came to Australia in March 2010. His wife and twin children, after they were born, remained in Pakistan with his parents. In January 2011, the appellant learnt that Usman would not be in Pakistan for some time. As a result, he returned to that country on 21 January 2011, where he claimed to have stayed indoors with his family. On 7 February 2011, the appellant claimed that while he was at a petrol station in Pakistan with his wife and children, he was shot at by a man on the back of a motorbike and that immediately afterwards his assailant and an accomplice immediately fled the scene. He claimed that when he went to file a report at the police station, the police refused to include Usman’s name in the report. As a result of those attacks, the appellant claimed that his wife and father urged him to leave Pakistan and that he did so to claim protection here.

The proceedings in the Tribunal

8    The appellant attended and gave evidence to the tribunal. During the course of the hearing before the tribunal, it raised the difficulty that it saw with his claims, namely that they did not appear to have any Refugee Convention basis. The tribunal noted the appellant’s evidence that Usman had political connections and connections with a branch of the clergy of the Islamic religion. The tribunal noted that the appellant’s migration representative had attached to his statement three and a half pages of extracts from various media reports referring to matters which the tribunal found did not appear to be relevant to his claims. It noted that the representative also produced a large number of media reports that likewise did not appear to be relevant.

9    The tribunal explained to the appellant that in order to come within the definition of a refugee, he had to fear being persecuted for one of the five Convention reasons and that the appellant had said to it that Usman was politically strong, and “they could not face him”. The appellant contended that if Usman were a normal person, he would not be able to do any harm to him, but because of his political connections and his connections with the Taliban and Muslim religion, Usman was in a position to harm him with apparent impunity.

10    The tribunal found that the appellant’s claims did not bring him within the definition of a refugee in the Convention. It said ([40]-[41]):

“This is because one or more of the five Convention reasons is not the essential and significant reason for the persecution which he fears as required by paragraph 91R(1)(a) of the Act. The applicant has said that he fears that he will be killed by a man named [Usman]. He has described this man as having political connections and also as having different political and religious views from him. However he has clearly stated that the reason why [Usman] wants to kill him is that he married the woman whom [Usman] wanted to marry.

I do not accept on the evidence before me that [Usman] wants to kill the applicant for reasons of his race, religion, nationality, membership of a particular social group or political opinion.”

11    The tribunal found that because that was the only reason the appellant had suggested for his fear of returning to Pakistan it did not accept that there was a real chance he would be persecuted for a Convention reason, were he to return there now or in the reasonably foreseeable future. Accordingly, it affirmed the decision of the delegate.

The proceedings before the trial judge

12    The trial judge gave consideration to the first of the appellant’s grounds as perhaps raising a ground of the kind considered in Minister for Immigration v Khawar (2002) 210 CLR 1. His Honour said that it was immediately obvious that the appellant’s explanation before the Court was that the social group he referred to were terrorists and their supporters of which Usman was a member and thus, his matter was distinguishable from that case. His Honour considered that the appellant, at that time, had not been and was not asserting to have been a member of a particular social group. He held that accordingly, the tribunal was correct to have found that the source of the harm which the appellant claimed to fear was that of a private individual, not referrable to any Convention ground. His Honour held that, in those circumstances, the unwillingness of the police to register the appellant’s complaint against Usman did not, on its own, supply a link to a Convention ground and that the Pakistani State was not required to guarantee the safety of its nationals from harm occasioned by private individuals on the basis of Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 at [26] and [117].

The appellant’s submissions

13    Counsel for the appellant argued that the press reports which the tribunal considered not to be relevant to his claim were, in fact, capable of identifying a factual basis to support the new ground of appeal. For example, one press report referred to the assassination by Jihadists of the only Christian minister in Pakistan’s government and what was reported to be a muted reaction, particularly by Islamic clerics who had been slow to denounce the crime. The article referred to a climate of fear, which each arrest and murder heightened, among those who knew how Islam supposedly treated those who did not share its dogmas. Another article dated 15 October 2010 asserted that, because the Taliban sought political power and considered themselves reformers, they sought to rid Islam of various religious practices that they did not endorse. That article claimed that radicals aimed their weapons at communities that were least able to protect themselves but that people in higher positions would soon feel the effects of the intimidation and that the Taliban had already threatened authorities in Karachi. Another press report from the British Broadcasting Corporation of 25 January 2011 referred to the Pakistani President not being the only political leader of that country to have suffered problems from the Islamist side of Pakistani politics and the strengthening of hardline religious groups. The article went on to discuss how various religious factions were able to exert political and forcible power in parts of Pakistan.

14    The appellant argued that because he had been unable to secure protection from the Pakistan authorities in the circumstances he had articulated before the tribunal, it had a duty to investigate whether he had a well founded fear of persecution by reason of his being a member of the particular social group of persons victimised by individuals with political power and/or connections. He asserted that, in substance, his claim was that the conduct he feared was persecutory because of the discriminatory inactivity of state authorities in not responding to the violence of non-State actors in the sense discussed by McHugh and Gummow JJ in Khawar 210 CLR at 29 [87].

Consideration

15    I reject that argument. In my opinion, the tribunal’s findings were appropriate to deal with the claims put to it by the appellant on its review of the delegate’s decision to refuse him a protection visa. I am not satisfied that in the circumstances of this case the characterisation of the particular social group on which the appellant relied identified any recognisable group for the purposes of the Refugees Convention. In Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387 at 400-401 [36], Gleeson CJ and Gummow and Kirby JJ said:

“36    Therefore, the determination of whether a group falls within the definition of “particular social group” in Art 1A(2) of the Convention can be summarised as follows. First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large. Borrowing the language of Dawson J in Applicant A [(1997) 190 CLR 225 at 241], a group that fulfils the first two propositions, but not the third, is merely a “social group” and not a “particular social group”. As this Court has repeatedly emphasised, identifying accurately the “particular social group” alleged is vital for the accurate application of the applicable law to the case in hand [see, e.g., Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 at 1099 [72]; 197 ALR 389 at 404, per Kirby J].” (emphasis added)

16    The essence of the appellant’s identification of the group was that it consisted of “persons victimised by individuals with political power and/or connections”. That characteristic or common attribute substantially comes to this: that persons with political power or connections can victimise individuals within Pakistani society. The characteristic is, in effect, a shared fear of persecution by persons who have political power and/or connections.

17    There is nothing to indicate that membership of the class of victims has any particular distinguishing characteristic, which associates any fear with the criterion in the Convention that they must entertain a well-founded fear by reason of their membership of the particular social group. The mere fact that one might be a victim of illegal activity in a country does not identify, within the meaning of the Convention, a well-founded fear that a person might have by reason of his or her being a member of a group with particular characteristics. As Gleeson CJ said in Khawar 210 CLR at 12 [26]:

“An Australian court or tribunal would need to be well-informed about the relevant facts and circumstances, including cultural conditions, before reaching a conclusion that what occurs in another country amounts to persecution by reason of the attitude of the authorities to the behaviour of private individuals; but if, after due care, such a conclusion is reached, then there is no reason for hesitating to give effect to it.”

18    In the same case, McHugh and Gummow JJ said at 210 CLR at 28 [83]:

“Applicant A indicates that the particular social group cannot be defined solely by the fact that its members face a particular form of persecution so that the finding of membership of the group is dictated by the finding of persecution. Those considerations do not control the present case. The membership of the potential social groups which have been mentioned earlier in these reasons would reflect the operation of cultural, social, religious and legal factors bearing upon the position of women in Pakistani society and upon their particular situation in family and other domestic relationships. The alleged systemic failure of enforcement of the criminal law in certain situations does not dictate the finding of membership of a particular social group.” (emphasis added)

19    In my opinion, the appellant’s identification of the particular social group of which he was a member, as consisting of persons victimised by individuals, falls foul of what their Honours described as the deficiency in the claim there, namely, that the finding of membership of the group is dictated by the finding of persecution, as they went on to say (210 CLR at [84]:

“… [i]t must be possible to say in a given case[ such as this where it is alleged that the authorities tolerate the persecutory conduct] that the reason for the persecution is to be found in the singling out of one or more of the five attributes expressed in the Convention definition.”

20    Here, relevantly, the attribute to be considered is the membership of the particular social group. The tribunal was concerned to ensure that the appellant had had a fair opportunity to identify how he fell within any such category. It found that the reason why Usman wanted to kill the appellant was that he had married the woman whom Usman wanted to marry. That finding was, in substance, that Usman’s activity was personal, was motivated by personal or criminal behaviour and was not for reasons of any Convention ground.

Conclusion

21    In my opinion, the appellant failed to identify any particular social group that could satisfy the criteria for the valid claim under the Convention. For these reasons the appeal must be dismissed.

Associate:

Dated:    20 March 2013