FEDERAL COURT OF AUSTRALIA SPFB v Minister For Immigration & Multicultural & Indigenous Affairs [2004] FCA 269 Judiciary Act 1903 (Cth) Migration Act 1958 (Cth) s 36(2) s 36(2) Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476;[2003] HCA 2 applied Collector of Customs v Pozzolanic (1993) 43 FCR 280 referred to Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 referred to Jahazi v Minister for Immigration & Ethnic Affairs (1995) 61 FCR 293 referred to Perampalam v Minister for Immigration & Multicultural Affairs (1999) 84 FCR 274; [1999] FCA 165 referred to Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 referred to SPFB, SPGB, SPHB & SPJB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS S 538 of 2003 MANSFIELD J 25 MARCH 2004 ADELAIDE IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 538 OF 2003 BETWEEN: SPFB, SPGB, SPHB & SPJB APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: MANSFIELD J DATE OF ORDER: 25 MARCH 2004 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicants pay to the respondent costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 538 OF 2003 BETWEEN: SPFB, SPGB, SPHB, SPJB APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: MANSFIELD J DATE: 25 MARCH 2004 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 This is an application under s 39B of the Judiciary Act 1903 (Cth) to quash a decision of the Refugee Review Tribunal (the Tribunal) given on 4 June 2001. The Tribunal recognised it could not make its decision on humanitarian grounds. It largely accepted the applicants' claims about what happened to them in their native Pakistan. Their experiences are very unfortunate. One can readily understand why they fear returning to Pakistan. 2 The applicants are husband and wife and two of their adult female children. The applicant parents last arrived in Australia on 19 October 1998. The daughters arrived in Australia on 13 February 1998 and 2 November 1997. The applicant parents and the elder daughter applied for a protection visa under the Migration Act 1958 (Cth) (the Act) on 18 November 1998, and the other daughter for a protection visa on 30 November 1998. A delegate of the respondent refused to grant to the applicants the protection visas for which they had applied, by a decision made on 24 November 1999. 3 It is the decision of the Tribunal affirming the delegate's decision not to grant to the applicants a protection visa which is the subject of the present application. It is accepted that the application can succeed only if jurisdictional error on the part of the Tribunal is demonstrated: Plaintiff S157/2002 v Commonwealth of Australia (2001) 211 CLR 476; [2003] HCA 2. 4 For the applicants to succeed in their application for a protection visa, it was necessary that the delegate of the respondent and, on review, the Tribunal be satisfied that they are persons to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol (the Convention): see s 36(2) of the Act. In practical terms, that meant that the decision-maker had to be satisfied that the applicants are refugees as defined in Art 1A(2) of the Convention, that is persons who have a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, and who otherwise were outside their country of nationality and are unable or, owing to that fear, are unwilling to avail themselves of the protection of that country. 5 In the present matter it was principally the male applicant who presented the claims to be a refugee on behalf of himself and his family. His claims were based upon a well-founded fear of being persecuted for reasons of his religion, or a religion which would be imputed to him and his family. He and his family claimed that, by reason of that imputed religion, they each had a well-founded fear of being persecuted if they were to return to Pakistan. 6 Counsel for the parties focused upon the way in which the Tribunal addressed the claims of the male applicant. It seems to have been common ground that, if the male applicant were to succeed in having the Tribunal decision quashed because of the way in which it addressed his claims, it would be appropriate to quash the decision of the Tribunal and direct it to re-hear and determine the review of the applicants' claims generally. Accordingly, I shall focus only upon the way in which the Tribunal addressed the male applicant's claims. 7 Much of the applicants' claims were accepted by the Tribunal as having occurred. It accepted that each of the applicants is a national of Pakistan, and that they are a family. The male applicant was born into a Qaidyani family. That is a sect of the Muslim religion from the city of Qaidyan, eponymously named apparently after the prophet Mizra Ghulam Ahmed Qaidyani. It is not a sect of the Muslim religion which is accepted by other members of the Muslim religion. The Tribunal accepted that Qaidyani followers are not allowed to describe themselves as Muslims in Pakistan, that their political rights are curtailed because they are not regarded as Muslims, and that there are limitations on their capacity to practice their religion through the closure of mosques and the prohibition of gatherings. They may also experience discrimination in education and employment 'even on the basis of a rumour that individuals are Qaidyani'. 8 The male applicant was born in 1940. He was brought up by his family, an extended family as his mother died when he was very young, as a Qaidyani. In 1953 there was a dramatic anti-Qaidyani movement in Pakistan as a result of which thousands of Qaidyani Muslims were killed. The applicant himself was severely injured in the anti-Qaidyani riots, and still carries the scars of that occasion. He lost his family and became homeless. He was taken in by a Catholic family, and became a practising Catholic in accordance with the religious beliefs of that family. The father of that family he called his 'godfather'. When that family converted to Sunni Islam in 1955, the applicant also converted to the Sunni Islam religion. 9 The applicant has had a good work history. From 1959 to 1973 he worked for Pakistan International Airlines. He then joined the army of the 'British Army Sultan of Muscat Armed Forces'. In the meantime he had married his wife in September 1962. He did not then disclose his previous Qaidyani connection to his wife's family. In 1978, he commenced work in Muscat/Oman as a technical storekeeper. He retained that position until August 1998, when he was dismissed due to the 'Omanisation' of the workforce in Oman. Shortly thereafter he and his family came to Australia. One of their sons had already studied in Australia, married an Australian citizen, and had become an Australian citizen. 10 Over the years, whilst in Oman, the applicant had also run a successful business importing goods from Oman into Pakistan and selling them in Pakistan. He had retained family connections in Pakistan. His wife and children had remained and were brought up in Pakistan. They had rented, and subsequently purchased, a house in Pakistan. The male applicant visited Pakistan several times each year. 11 Apart from the anti-Qaidyani riots in 1953, the applicant had no problems until 1984. In that year his godfather died. He claimed that his godfather had, shortly before his death, told his father-in-law about the male applicant having been born into a Qaidyani family. From that time onwards he had troubles. His father-in-law pressed him to divorce his wife but together they resisted. Other members of the applicant wife's family were hostile towards the male applicant, perhaps because of his apparent wealth, and upon learning of his Qaidyani origins that hostility appears to have increased. 12 The applicant's father-in-law died during 1985. Thereafter the male applicant had a series of problems which he claimed were due in part to his Qaidyani origins and which demonstrated, by reason of what had happened to him in the past due to his Qaidyani origins, that he had a well-founded fear of persecution by reason of his religion, or the religion attributed to him, if he were to return to Pakistan. It is convenient to take each of those claims in sequence and address how the Tribunal considered them. (1) Although the Tribunal accepted that there was hostility towards the applicant and his family from his wife's family, the Tribunal noted that the hostility had existed almost since the time of the marriage, and might have become stronger when his Qaidyani origins were revealed. However, it did not accept that his wife's family regarded his apparent prosperity as due to his Qaidyani origins. It noted that there is no information to indicate that Qaidyani people derive any greater capacity to make a living because of their religion. The Tribunal said: '… I am not satisfied that the applicant's Qaidyani origin is a primary reason for the conflict … His wife's family may have envied his means but this concerns interpersonal relationships and is not in my view a factor which engages the provisions of the Refugees Convention.' (2) In 1993 the male applicant's family was robbed and those at home were beaten and threatened when their home was invaded. The robbers may have said that the family was Qaidyani and that they should leave Pakistan. The Tribunal was not satisfied that the evidence indicated that the motivation for the robbery was anything more than an intrusion so that the robbers could steal things they wanted, even accepting reference was made to their Qaidyani origins. The absence of a sustained interest in harming or harassing or threatening the male applicant's family thereafter tended to confirm that view. (3) From mid-1995, the Mohajir Quami Movement (MQM) started to demand protection money from the male applicant's family. He acceded to that demand. At one point he declined to continue to pay protection money. He claimed then that, at the instigation of the MQM who made a false allegation against his family, the police attended his home in March 1996 searching for firearms and ammunition, and arrested and detained one of his sons. He claimed the police during the search referred to the family's Qaidyani origins. The Tribunal accepted that the applicant may have given protection money to the MQM, but it did not accept that as a result of any communication from the applicant the police authorities took action looking for ammunition or that they detained his son as he alleges. It did not accept that the MQM made a false allegation to the police about the applicant or his family having weapons or ammunition. (4) The male applicant was on 22 May 1996 taken by the police to the police station and questioned about the frequency of his travel. That followed a return visit to Pakistan on 3 May 1996. The Tribunal accepted that he was questioned as he claimed but did not consider that there was anything to indicate that what occurred was related to his Qaidyani religion. It may have been for other reasons. It noted the incident was an isolated one. It did not consider that the arrest and questioning on that occasion had any implications for what the applicant might face when he returns to Pakistan. (5) In March 1997, whilst the applicant was in Muscat, another horrible housebreak and robbery occurred in the home in Pakistan. A number of armed persons, mostly masked, broke in upon the family and beat them and threatened them to force them to disclose the whereabouts of their valuable assets. The family eventually relinquished their valuables, of very great value, when the daughters were threatened with rape. The Tribunal was prepared to accept that the family was a victim of theft but was unable to conclude 'that the applicant's religious origin was a motivating factor'. It did not however reject the claim that, during the break-in, the family's Qaidyani origins were again referred to. The applicant was critical of the police response to the report of that robbery with violence. He nominated two persons, relatives of his wife, who he said had been involved and who had (he believed) been the persons who demanded money from him in September 1985. The Tribunal accepted that the applicant may believe those persons are the people behind the robberies, but it was unable to accept that the police failure to act to arrest them represented a failure of the police to properly address the crimes which had been committed. (6) The applicant then claimed that on three occasions in November 1997 and the beginning of 1998 the police had attended his home premises (when he was not there) as a result of the police commencing to concoct things against him and his family. He believes that conduct was official harassment due to his Qaidyani birthright. The Tribunal did not regard there being any credible evidence to support his claim that the police had taken any adverse interest against him since his questioning in May 1996. It did not consider that there is a real chance that the family, if they return to Pakistan, would face mistreatment by the police because the male applicant was born into a Qaidyani family. (7) The applicant claimed further to have been kidnapped on 27 September 1998, shortly after he had sold his house, and to have been released when he paid to the kidnappers the net proceeds of the sale of his house. The Tribunal did not accept that claim. It gave reasons for it. 13 Having made those findings, the Tribunal then looked more generally at the applicant's claims and the significance of his Qaidyani family origins. It noted that religion was not a significant element of his family life, that his children had been born after he had abandoned the Qaidyani religion, and that they did not know much about it. It did not believe the one daughter who claimed to still adhere to the Qaidyani religion. It did not accept the claims that the educational opportunities of the applicant's children were impaired to a significant extent, or indeed at all, as a result of their Qaidyani association. It addressed a number of other matters about which he had given evidence. It did not regard what happened to the applicant in 1953 as now relevant to whether he now had a well-founded fear of persecution if he were to return to Pakistan. It did not regard evidence he has given about attacks on his neighbours in 1996, or some possibly inappropriate attention of a neighbour at his home whilst he was in Muscat/Oman, or his refusal to provide a supporter with whitegoods upon a visit from Oman to Pakistan in 1997, or the circumstances of the divorce of one of his daughters, or the circumstances of his departure from Muscat, or the amount he was able to recover from the sale of his house, as indicating any connection with his Qaidyani origins. 14 It then addressed whether the claims which it had accepted gave rise to a well-founded fear of persecution if the family were to return to Pakistan. That was a review in a collective way of the findings which it had already made. Even if Qaidyani followers are restricted in the way it noted, those were not matters, it considered, which would impede upon the male applicant's or his family's capacity to return to Pakistan, because they did not hold themselves out as Qaidyanis. The male applicant had converted to Sunni Islam in 1955. Accordingly, the Tribunal thought they were not restricted in their political rights, or in the practice of their present religion, or in the educational or employment opportunities available to them. To the extent to which his wife's family had increased their hostility when they became aware of the applicant's Qaidyani origins, the Tribunal did not regard that increased hostility or ostracism or harassment as being of a character to constitute persecution. It said: 'I have accepted that the applicant's family was robbed in 1993 and 1997 and that the police extracted a bribe from him in May 1996. I have already stated that I do not consider that the reason of religion was a factor motivating these incidents: if Qaidyani was mentioned on the three occasions involved as he has claimed I do not consider that this indicates that the Qaidyani label was the reason for what occurred given the rest of the credible evidence before me. The incidents were isolated, nothing else relevant to Qaidyani occurred other than the word being spoken and there was no pattern or sustained harassment or harm taken against family members for that reason. I consider that what occurred was a result of the perception that the applicant and his family had money and goods which could be stolen or extorted.' It noted that there is considerable political and other violence in Pakistan, but it said that it had 'found that the family's association with Qaidyani was not a reason for these incidents'. 15 It is not express, but clearly enough implicit, in the Tribunal's reasons that it accepted the applicants have a fear of returning to Pakistan, and that they attribute their past experiences to the Qaidyani origins of the male applicant. However, the Tribunal was not satisfied that the male applicant or any member of his family were persons who have a well-founded fear of persecution for reasons of their religion if they were to return to Pakistan. It did not think there was a real chance that they would face harm amounting to persecution for reasons of their religion if they were to return to Pakistan. 16 The grounds of review identified in the application, or in the amended application, were not adopted by counsel appearing for the applicants. The solicitor and counsel for the applicants changed shortly prior to the hearing. The grounds of review which were argued were as follows: (1) The Tribunal erred in law by failing to address whether the Convention reason of religion was a reason for the detriments which it had found that the applicants had experienced, and had erred by asking whether it was the predominant reason for that persecution. (2) The Tribunal had failed to look at the whole of the applicants' claims cumulatively, but looked only to each individual claim in isolation and then sought to find an alternative motivation for it as the dominant motivation, and then erred by concluding that there was no other possible motivation. (3) The Tribunal failed to consider whether the attitude of Pakistani authorities to the detriments the applicants had sustained through private criminal conduct amounted to the Pakistani authorities condoning or tolerating or failing to protect the applicants from such conduct by reason of their religious origins, and (4) The Tribunal concluded, irrationally, that because the applicant and his family were not practising the Qaidyani religion they would not be subject to persecution by reason of their Qaidyani background. 17 In my judgment the Tribunal did not fall into error in the ways alleged. There are a few passages in its reasons for decision upon which it might be said that the Tribunal did misdirect itself by considering whether the applicants' religious background was the reason, or the dominant reason, for the conduct which it found they had experienced in the past. However, its reasons are not to be read 'with an eye keenly attuned to the perception of error': Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287 cited in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. It is necessary to have regard to the whole of the Tribunal's reasons to determine whether that complaint of misdirection is made out. There are places where it has referred to 'the' reason for the events that befell the applicants, and hence where it has possibly failed to consider whether there may have been more than one reason for such events, including the family's Qaidyani origins. However, my reading of the Tribunal's reasons indicates that ultimately such expressions are loose expressions for what it was seeking to ascertain. As it said at the end of its reasons, it has concluded that the family's association with Qaidyani was not a reason for the incidents which it found to have occurred. 18 Nor has it been demonstrated, upon analysis of the Tribunal's reasons, that the Tribunal did not appreciate that there may be more than one cause for particular conduct which amounts to persecution, and that so long as the Convention reason is a cause of the persecution that is sufficient: see for example Jahazi v Minister for Immigration & Ethnic Affairs (1995) 61 FCR 293 at 299-300 and Perampalam v Minister for Immigration & Multicultural Affairs (1999) 84 FCR 274; [1999] FCA 165. In my judgment the Tribunal was alert to the possibility that simply because there appears to be a dominant non-Convention related reason for the infliction of harm upon an applicant in the past, that does not mean that there may not be other Convention related motives at work. 19 I also do not consider that the Tribunal fell into the error (assuming it might have been a jurisdictional error) of considering the male applicant's claims only in isolation. It was the nature of the male applicant's claims that, by reason of his Qaidyani origins, he was vulnerable to persecution by the authorities in Pakistan and by private citizens in circumstances where the authorities would not support persons of Qaidyani origin by properly investigating criminal behaviour committed against him. The particular incidents he described were illustrations of his overall complaint. However, it was appropriate for the Tribunal to have made findings of fact about the particular past incidents of which the applicant complained as a step in its consideration of whether there was a well-founded fear of persecution for a Convention reason: see Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559. Having made those findings, the Tribunal then did look to see what was the cumulative impact of the complaints, to the extent to which it found they had occurred. Indeed, the absence of harassment or mistreatment for significant periods was part of the reason why the Tribunal, in its assessment of the cumulative facts relevant to the applicant's claims, reached its decision. The male applicant had had no real experiences of disadvantage from 1953 or during his working life up to 1984, and apart from family harassment, he had had no detrimental experiences until 1993. The Tribunal looked at the experiences he had had since that time, and the lapse of time between them, and such information as there was as to the perpetrators of those various pieces of conduct. It was in the light of that picture that the Tribunal, in my judgment, properly assessed the claims cumulatively. 20 I also consider that the Tribunal did address the claim that Pakistani authorities do not investigate crimes against persons of Qaidyani origin properly and that the authorities condoned or tolerated persecutory behaviour on the part of third parties towards the applicants and others of Qaidyani origin. It found that that was simply not the case. In respect of the violent robberies in June 1993 and in March 1997, it found that the authorities had investigated those matters appropriately. It specifically rejected the claim that the authorities had not investigated or arrested two named persons through some policy of indolence where Qaidyanis were the victims of crime. On the Tribunal's view of the matter, although the male applicant may have believed those persons were involved, there was no real evidence that they were. The inactivity of the authorities in relation to those persons was because (the Tribunal found) they were not the perpetrators of the crimes. 21 Finally, in my judgment the Tribunal did not fall into the error of concluding that, because the applicants are no longer practising Qaidyani religion, their Qaidyani religious background was irrelevant to the events which have happened to them in the past. It did not conclude that. It looked to independent country information to ascertain that persons of Qaidyani origin may change their religious beliefs over time. It specifically noted material which indicated that persons considered to be Qaidyani by reason of being born into a Qaidyani family could alter their faith when they are older. In fact, none of the applicants' children were born into the Qaidyani faith or had any education in that religion (as the Tribunal found). The applicant converted to Sunni Islam in 1955 and is entitled to describe himself as a Muslim. His wife is a Sunni Muslim and is entitled to describe herself that way. So too are the children. The Tribunal therefore concluded that there are no restrictions on the political rights of the applicant or his family. It found that the restrictions on persons who practised the Qaidyani religion are of no significance to them because they do not do so. 22 Accordingly I have reached the view that the alleged errors on the part of the Tribunal are not made out. I do not need to determine, in those circumstances, whether they would amount to jurisdiction errors of such a nature as to warrant the Tribunal's judgment being set aside. In my view the application should be dismissed. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate: Dated: 19 March 2004 Counsel for the Applicant: J Belbruno Solicitor for the Applicant: Joseph Belbruno Counsel for the Respondent: K Tredrea Solicitor for the Respondent: Sparke Helmore Date of Hearing: 13 February 2004 Date of Judgment: 25 March 2004