Minister for Immigration and Border Protection v Naqvi

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. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White.