FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Border Protection v Naqvi [2018] FCA 2075

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

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

REASONS FOR JUDGMENT

WHITE J:

1    The first respondent is a national of Pakistan who arrived in Australia on a Student visa in 2008. He was granted a s 457 visa on 8 August 2012.

2    The second respondent is the first respondent’s wife. She obtained visas as a member of the first respondent’s family.

3    The third respondent is the Administrative Appeals Tribunal (the Tribunal) but it took no part in the proceedings. I will use the term “respondents” to refer to the first and second respondents.

4    The first respondent’s sponsor went into liquidation on 18 September 2015 and he then became unemployed. The respondents’ visas were cancelled by a delegate of the Minister on 21 April 2016 because the first respondent had remained unemployed for a period exceeding 90 days and therefore in breach of the condition of his visa contained in reg 8107(3)(b) of the Migration Regulations 1994 (Cth).

5    On review by the Tribunal, the decision of the delegate was affirmed. However, the respondents’ application for judicial review in the Federal Circuit Court (FCC) succeeded: Naqvi & Anor v Minister for Immigration & Anor [2018] FCCA 793.

6    The Minister now appeals against the FCC judgment. His Notice of Appeal contained a single ground but, at the hearing, the Minister was granted leave to add an additional ground.

7    The appeal arises from the way in which the Tribunal member dealt with Australia’s non-refoulement obligations. The Tribunal determined the application by reference to the Department’s Procedures Advice Manual (PAM3), although it was not bound to do so. In particular, the Tribunal member accepted that that the Tribunal should “assess whether Australia would be in breach of its international obligations [if the applicants’ visas are cancelled]”.

8    The Tribunal member addressed those obligations in the following paragraphs:

[42]    In considering whether to exercise its discretion to cancel the first applicant’s visa, the policy guidelines suggest that the tribunal should assess whether Australia would be in breach of its international obligations. These include the obligation in relation to non-refoulement pursuant to the Refugees Convention and the Refugees Protocol, Australia’s responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CRC), and the International Covenant on Civil and Political Rights (ICCPR).

[43]    The first applicant stated that if he returned to Pakistan, he would fear for his safety and that of his family because he is a shia muslim; a persecuted minority in Pakistan. Apart from belonging to the shia sect, the first applicant could not cite a specific threat to his safety or reason why he or his immediate family would be targeted for harassment in Pakistan. He relied generally on his belonging to the shia sect.

[44]    As set out above, the Tribunal is prepared to accept that shia muslims are a minority in Pakistan and that there have been reported instances of shia persecution in that country. However, on its own, that general proposition is not enough to constitute sufficient evidence that the first applicant or his immediate family are likely to be subjected to harassment or other treatment that would contravene any of Australia’s international obligations including the ones set out in paragraph 42 above.

[45]    The first applicant could not say with any precision why he or his immediate family would be targeted in Pakistan. He did not say that he had been threatened or targeted in the past. And he said that the primary reason he came to Australia was due to the lack of employment opportunities in Pakistan. He did not cite difficulties living in Pakistan as a shia as a reason for leaving. Even if the events set out in paragraph 10(p)(iv) above did occur, they did not constitute direct threats against the first applicant or his immediate family.

[46]    On the limited and vague evidence before it, the Tribunal is unable to conclude that the first applicant or his immediate family are likely to be subjected to treatment in Pakistan that would contravene any of Australia’s non-refoulement and other international obligations sufficient to justify setting aside the delegate’s decision.

[47]    In a review of a decision to cancel a non-protection visa such as the one at hand, the Tribunal is not required to undertake a full assessment of Australia’s non-refoulement obligations. It remains open to the first applicant (and his family) to apply for protection, in which application the claims can be properly articulated and considered.

(Emphasis added and footnotes omitted)

9    The FCC Judge considered that the emphasised portions in these paragraphs indicated that the Tribunal member had not applied the test for a well-founded fear of persecution contained in s 5J(1) of the Migration Act 1958 (Cth) (the Act). Section 5J(1) provides:

(1)    For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)    there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)    the real chance of persecution relates to all areas of a receiving country.

Note:    For membership of a particular social group, see sections 5K and 5L.

10    The FCC Judge concluded that, instead of considering whether the respondents would face a real chance of persecution if returned to Pakistan, the Tribunal member had applied a higher threshold, namely, whether they were likely to face persecution. The FCC Judge also considered that the Tribunal had not discharged its function of considering whether Australia’s non-refoulement obligations would, or may, be breached, at [24]. In addition, the FCC Judge held that the Tribunal’s reasons for the decision did not indicate that the Tribunal had understood Australia’s non-refoulement obligations.

Ground 1

11    In Ground 1 of the Amended Notice of Appeal, the Minister contends that the FCC Judge erred in concluding that “the Tribunal had applied the wrong test for a well-founded fear of harm in finding that it was not “likely” that the first applicant would be subjected to treatment contravening Australia’s international obligations”.

12    Counsel for the Minister accepted that, in accordance with s 5J(1)(b), the test of “whether a person has a well-founded fear of harm is, amongst other things, whether there is a “real chance” that the person would be persecuted upon his or her return to the country of origin, and that a chance can be “real” even if it is less than 50%”. Counsel also accepted that the use of the term “likely” may point to error. That was an appropriate concession: Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505 at [247].

13    Counsel submitted, however, that the FCC Judge had misunderstood the Tribunal’s reasons. He commenced with a submission that it was necessary to identify accurately the subject matter of the real chance. Under s 5J(1)(b), that is the chance that the person will be persecuted for one or more of the Refugee Convention reasons stated in subs (1)(a).

14    In the present case, the Tribunal had not been satisfied that it was likely that the first respondent or his family would be subjected to harassment or other treatment which would contravene any of Australia’s international obligations, including “the obligation in relation to non-refoulement pursuant to the Refugees Convention and the Refugees Protocol, Australia’s responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of a Child (CRC), and the International Covenant on Civil and Political Rights (ICCPR)”.

15    Counsel submitted that the Tribunal’s reasons were not to be understood as saying that harm was unlikely, only that harassment or other treatment which would contravene any of Australia’s international obligations was unlikely.

16    Later, counsel submitted that “the Tribunal was saying that it could not be satisfied of a real chance of harm; there was not even a likelihood of a real chance of harm”.

17    In my opinion, the Minister’s submissions cannot be accepted. First, it may be accepted that the emphasised passages in the Tribunal’s reasons indicate that the Tribunal member considered that there was insufficient evidence to conclude that the first respondent and his family “are likely to be” subjected to treatment contravening Australia’s non-refoulement and other international obligations. But it is apparent that the FCC Judge understood that that is what the Tribunal was saying, and that she considered that to be in error:

[22]    Relevantly, the correct test was whether the applicants would face a real chance of persecution, not whether they were likely to face persecution. That is, Australia would or may breach its international obligations if it returned a person to a country where that person faced a real chance of persecution. The Tribunal applied the wrong test when it decided that the applicants were unlikely to face persecution in Pakistan.

(Bold emphasis in the original and other emphasis added)

18    Understood in context, the FCC Judge was using the word “persecution” as a shorthand for the expression used by the delegate, namely “harassment or other treatment that would contravene any of Australia’s international obligations”.

19    Secondly, the notion of harm is intrinsically involved in the concept of persecution – see s 5J(4)(b) and s 5J(5) in the Act.

20    Thirdly, the Minister’s submission that the Tribunal could “not even” conclude that it was likely that the respondents would be subjected to a real chance of harm is to invert the degrees of probability involved. A chance of persecution may be real if it is not remote, insubstantial or far-fetched: Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389, 407, 429. A chance may be characterised as real even if the possibility of it occurring is less than 50%. A chance does not have to be likely to be experienced before it can be characterised as real. That being so, the implicit submission that, because the delegate had found that the chance was not likely, it could not be regarded as real, cannot be sustained.

21    Fourthly, acceptance of the Minister’s submission would require that the critical sentence in [44] of the Tribunal’s reasons be recast in significant respects. Counsel accepted that that was so, submitting that the sentence should be understood as though it read:

However, on its own, that general proposition is not enough to constitute sufficient evidence that the first applicant or his immediate family are likely [to face a real chance of persecution if their visas are cancelled].

I do not consider that there is a proper basis on which the Tribunal’s reasons can be understood as bearing the recast meaning for which the Minister contended. One cannot help thinking that if that was what the Tribunal member intended, it would have been easy to say so in express terms.

22    Fifthly, the clause in [44] of the Tribunal’s reasons “that would contravene any of Australia’s international obligations including the ones set out in paragraph 42 above” is more naturally understood as qualifying the term “other treatment” than the composite term “harassment or other treatment”.

23    Sixthly, I accept the submission of counsel for the respondent that assistance is also to be obtained by reference to the Tribunal’s inclusion of the words “sufficient to justify setting aside the delegate’s decision” at the conclusion of [46]. That clause would be otiose if the words preceding it (“that would contravene any of Australia’s non-refoulement and other international obligations”) are understood as referrable to the prospect that the applicant and his family may suffer persecution of the requisite kind.

24    Fundamentally, the difficulty with the Tribunal’s reasons is that they indicate that the Tribunal reasoned by reference to the likelihood of the first respondent and his wife experiencing persecution, if returned to Pakistan, rather than considering, in the terms of the Act, whether there was a real chance of them suffering persecution. If the Tribunal member had reasoned in the terms contemplated by s 5J(1)(b), there was no occasion to use the term “likely” at all. The very fact that the member used that term indicates an error of approach. In this respect, it is pertinent that the Tribunal member does not anywhere in the reasons mention the real chance test nor the well-founded fear of persecution test.

25    Counsel’s “fall-back” position was that both constructions of [44] are equally open. He submitted that in that circumstance, the Court should adopt “a properly beneficial construction of the delegate’s reasons”, citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-2.

26    For the reasons already given, I am not willing to accept that the construction of the Tribunal member’s reasons for which the Minister contends is reasonably open. This is not a situation which the Court is to choose between two reasonably available alternative constructions.

27    I consider that the FCC Judge was correct in finding error in the Tribunal’s reasons. The error is similar to that to which the Full Court referred in SZQRB at [247]. See also SRBB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1387 at [28].

28    For these reasons, I consider that Ground 1 fails.

Ground 2

29    By Ground 2, the Minister submitted that the FCC Judge had erred “in concluding that application of the wrong test resulted in jurisdictional error”. That was said to be so because, even if the real chance test had been applied, there could not have been a different result. Further still, part of the Tribunal’s reasoning had included the prospect of the respondents applying for a protection visa, in respect of which Australia’s non-refoulement obligations would be considered more fully. The effect, so counsel submitted, that the error should be regarded as immaterial, with the consequence that it cannot be regarded as jurisdictional.

30    Counsel referred in this respect to Hossain v Minister for Immigration and Border Protection [2018] HCA 34, (2018) 92 ALJR 780 at [29], [31] and Shrestha v Minister for Immigration and Border Protection [2018] HCA 35, (2018) 92 ALJR 798 at [10].

31    In effect, the Minister invited the Court to engage in its own evaluation of the factual matters upon which the applicant and his wife had relied. He noted in this respect that the Tribunal member had recorded that “the first applicant could not cite a specific threat to his safety or reason why he or his immediate family would be targeted for harassment in Pakistan” and that “[h]e did not say that he had threatened or targeted in the past … [h]e did not cite difficulties living in Pakistan as a Shia as a reason for leaving”.

32    In my opinion, it is not appropriate for this Court to engage in the kind of factual evaluation for which the Minister contended. The merits of the applicant’s claim are to be decided in the Tribunal. The prospect that the applicant and his immediate family may be subject to a form of harassment or persecution will depend upon a careful evaluation of the evidence, including the applicant’s claims that “[t]hree shias have been killed [in Pakistan] recently” and that his uncle and brother’s father in law have been threatened recently. The Court is not in a position to make the kind of detailed evaluation of that evidence which is to be expected would occur in the Tribunal. Further, it is unclear what weight can be attached to the fact that the applicant did not claim to have been subject to a “specific” threat. Given that he has resided in Australia since 2008, it may not be surprising that no threat direct to him specifically has been made. Instead, the question of whether he would face persecution in the requisite sense is to be discerned by reference to the circumstances prevailing in Pakistan including the threats made to others, and in particular the claimed threats to members of his extended family.

33    In these circumstances, I do think it can be said that the applicant’s claim was bound to fail so that the errors by the Tribunal member should not be regarded as material.

34    Accordingly, ground 2 fails.

Conclusion

35    For the reasons stated above, the appeal should be dismissed. I will hear from the parties as to costs.

Associate:

Dated:    20 December 2018