Minister for Immigration and Border Protection v Naqvi

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

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.