MZAJG v Minister for Immigration and Border Protection

1. The appeal be dismissed.
2. The appellants pay the costs of the respondent Minister. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

JESSUP J: 1 This is an appeal from a judgment of the Federal Circuit Court of Australia, given on 19 February 2016, dismissing an application for judicial review of a decision of the Refugee Review Tribunal, published on 4 July 2014, affirming an earlier decision of the delegate of the respondent Minister to refuse the appellants' applications for Protection (Class XA) Visas under the Migration Act 1958 (Cth) ("the Act"). The four appellants are a married couple of Pakistani nationality and their two Australian-born children. Only the circumstances of the couple were considered by the Tribunal, it being uncontroversial that the fate of the children's applications would follow the outcomes of their parents' applications. 2 The parents made a number of claims in their visa applications, one of which was that they had a well-founded fear of persecution if they returned to Pakistan on account of their religion. They were Shia Muslims, and contended that they would suffer persecution at the hands of Sunni extremists and militants. This claim was rejected by the Tribunal and, although included in the appellants' case in the Federal Circuit Court, was not the subject of the present appeal. 3 The case now pursued is specific to the husband (the first appellant). According to his claim, he had been brought up as a Sunni Muslim in a strict Sunni family. At some point before he travelled to Australia on a student visa in October 2005 (at which time he was 26 years of age), he met his future wife (the second appellant). She was Shia, which had the result, the husband claimed, that they had to be discreet about the friendship which followed. After he came to Australia, they corresponded and ultimately decided to marry. But the intending wife's family would not permit her to marry a Sunni man. In the result, when the intending husband travelled to Pakistan in 2008, he converted to Shia Islam as a precursor to getting married, which the couple duly did in April of that year. 4 The husband claimed to fear persecution from Sunni extremists and militants on account of having converted to the Shia Muslim faith. This claim was particularised with some very serious factual allegations as to the response which was provoked amongst Sunnis to his conversion to Shia and his marriage to a woman of that faith. I need not set out those allegations: they were rejected by the Tribunal, and no criticism is now directed to its reasons in that regard. 5 Rather, both of the presently relevant grounds of challenge to the jurisdictional sufficiency of the Tribunal's reasons are based in para 50 of those reasons, which was as follows: I accept that the applicant has converted to the Shia faith and I have taken into account that there are some reports of converts being targeted as indicated in the news articles provided by the applicant and referred to by the agent in her submissions. The country information also indicates that societal attitudes and attitudes of members of the Sunni and Shi'a communities towards conversion to Shi'ism vary hugely from family to family, community to community. I accept that extremist Sunnis groups and their supporters would oppose the change in affiliation strongly and that even moderate families would have some objection to the conversion. I have taken into account that DFAT have said that there are no legal barriers in Pakistan on conversion between Sunni and Shia sects and DFAT is not aware of any official discrimination should an individual wish to convert. Based on this DFAT information I do not accept that the applicant will be face [sic] blasphemy charges by the state. Considering all this information and my findings set out above that the applicant's family were aware that the applicant [sic] wife was a Shia and that the applicant had converted and given that the applicant's family attended their wedding in large numbers, I do not accept that members of the applicant's family had a strong objection to these matters or that his parents were strict Sunnis who would not let him play with Shias when he was a child. Given the limited number of reports that indicate that Sunni converts to the Shia faith have been targeted and given the applicant's family's attendance at the wedding, I find that the chance or risk that the applicant will be seriously harmed or significantly harmed by his family members, the state or anyone else in Pakistan, including Sunni extremist groups, is remote. 6 The husband's first ground of challenge in the Federal Circuit Court was expressed as follows: The Tribunal applied the wrong test and/or asked itself the wrong question with respect to the issue of whether the First Applicant faced a "real chance" of persecution from Sunni extremists in Pakistan by reason of being a convert to the Shia Muslim religion. Particulars (a) The Tribunal accepted that the First Applicant was a convert from the Sunni Muslim religion to the Shia Muslim religion. (b) The Tribunal accepted that there are some reports of converts being targeted [in Pakistan] as indicated in the news articles provided by the First Applicant and referred to by his legal representative in submissions. (c) The Tribunal also accepted that "extremist Sunnis groups and their supporters would oppose the change in affiliation [from Sunni Muslim to Shia Muslim] strongly and that even moderate families would have some objection to the conversion". (d) However, in considering whether these accepted facts translated into the First Applicant facing a real chance of persecution from Sunni Muslim groups in Pakistan by reason of being a convert, the Tribunal applied a numerical approach, assessing the risk against the "limited number of reports" of converts being targeted. (e) In adopting this approach, the Tribunal failed to assess and/or to ask whether there was real chance of persecution faced by the First Applicant in his particular circumstances. 7 In rejecting that ground, the primary Judge referred first to MZAAD v Minister for Immigration and Border Protection [2015] FCA 103 at [41]-[43], where the point had been made that "statistics on past events may have some probative value for predictive purposes". Her Honour held that it was "permissible for a Tribunal to have regard to the past experiences of an Applicant claiming persecution, as the foundation to predict future risk". Her Honour continued: [33] Further, it is also permissible for a Tribunal to have regard to country information, including any information that will bear on an Applicant's general claim to fear persecution on a convention ground. In this respect, it is not erroneous to have regard to statistical information. What is impermissible is for the Tribunal, in the evaluation of the "real risk" or "real chance", to have regard only to such data. 8 Later, the primary Judge said that the Tribunal's rejection of every other aspect of the husband's claims which bore on his "particular profile" provided the context for a consideration of para 50 of its reasons. Her Honour continued: [42] The Tribunal accepted his status as a convert to the Shia faith, and then took into account news articles and country information regarding reports of converts being targeted, attitudes of Sunni and Shia communities towards conversion, the stance of extremist Sunni groups to conversion and the legal position with respect to conversion. [43] The Tribunal found that the Applicant's family did not have a strong objection to his conversion. [44] In this context, the Tribunal referred to the limited number of reports of targeting of Sunni converts to the Shia faith and the Applicant's family's attendance at the wedding. [45] It may be said that the paragraph which is impugned by the Applicant is somewhat clumsy. However, read in context, I am satisfied that the Tribunal was merely summarising the matters it had regard to in its ultimate finding that "the chance or risk that the applicant will be seriously harmed or significantly harmed by his family members, the state or anyone else in Pakistan, including Sunni extremist groups, is remote." 9 The appellants' first ground of appeal in this court corresponds with what was their first ground in the Federal Circuit Court, discussed above. In support of it, counsel for the appellants made the following submission: [I]t is to be inferred from the Tribunal's reasoning at [50] … that it rejected the first appellant's claim to fear persecution as a convert from Sunni extremists solely on the basis of the "limited number of reports" indicating that converts are targeted by such groups. The application of this numerical mode of analysis gives rise to an inference that the Tribunal did not lawfully consider whether the individual appellant, personally and distinct from being a member of any class, faced a real chance of persecution in Pakistan from Sunni extremist groups by reason of being a Shia Muslim convert. 10 In considering this submission, I would say first that I reject the premise on which it is based, namely, that the relevant passage in para 50 of the Tribunal's reasons bespeaks a "numerical mode of analysis". To use the expression "the limited number of reports" is to say no more than that there were not many reports. While in a sense quantitative, the expression was so general and imprecise as to go nowhere near implying resort to a "mode of analysis" as submitted on behalf of the appellants. At best, what the appellants sought to do here was to conduct a minute examination of the verbiage employed by the Tribunal, with their eyes zealously attuned to the detection of error. This is an approach which has repeatedly been rejected by the courts, yet it continues to be observed from time to time, the present submission standing as a regrettable example. 11 Secondly, I agree with the primary Judge that para 50 of the Tribunal's reasons must be seen in the context of the unchallenged rejection of the bulk of the husband's factual case as to the basis of his fear of persecution for having converted to the Shia faith. Far from failing to engage with the case which was presented to it in respect of the husband's personal circumstances, the Tribunal dealt with that case point by point. Unhappily from his point of view, the Tribunal's disposition of his various allegations was adverse to him. When his counsel made the broad submission that his claim "personally and distinct from being a member of any class", was not lawfully considered by the Tribunal, she steered well clear of these very specific, individual, findings of fact about the husband's case. 12 This left the husband's "individual" case with very little factual support. Doing the best she could, his counsel proposed that the Tribunal ought to have given explicit consideration to what was said to be the unusual circumstance that an intending husband, rather than the wife, would convert to the other faith upon the two becoming married. The source of this proposition was a passage in the record of the decision of the Minister's delegate where it was "put" to the husband that the way he had proceeded in this respect was unusual. There was, so far as I can see, no suggestion, either there or anywhere else in the material which was relevant to the Tribunal's determination of the matter, that this particular order of things would be relevant to the risk of persecution which the husband would face at the hands of Sunni extremists and militants on account of his conversion. 13 Counsel also referred to two other "possibilities" to which the Tribunal might have given attention - and, if the appellants' case is to succeed, should have given attention, on pain otherwise of being held to have erred in point of jurisdiction - along the axis of the husband's individual circumstances. The first was that he had not "lived" in Pakistan for 9 years (albeit that he had returned there more than once over that period). This was said to be a separate point from that involved in another specific claim made by the appellants, that they were at risk of persecution on account of belonging to the social group of people who had returned to Pakistan from western countries, as to the disposition of which it was not contended that the Tribunal had been in error. The second was that the parents had two children who had been born in Australia. In relying on these "possibilities", the appellants' were, it must be said, clutching at straws. Nothing was drawn to my attention in the material before the Tribunal that might have given any serious currency to the suggestion that either circumstance ought to have been regarded as relevant to the matter of Sunni opposition to the husband's conversion to the Shia faith. 14 The primary Judge was correct to reject this first ground of challenge to the jurisdictional sufficiency of the Tribunal's decision. The only respect in which I would depart from her Honour's reasoning in this area of the case is that I do not, with respect, agree with the description of para 50 of the Tribunal's reasons as "somewhat clumsy". Unless grammatical perfection is to be regarded as the relevant point of reference, I would not venture any criticism of the terms in which that paragraph was expressed. 15 The husband's second ground of challenge in the Federal Circuit Court was expressed as follows: The Tribunal's findings with respect to the risk of persecution faced by the First Applicant from Sunni extremists by reason of being a convert to the Shia Muslim religion were affected by legal unreasonableness. Particulars (a) The Tribunal accepted that the Frist Applicant was a convert from the Sunni Muslim religion to the Shia Muslim religion. (b) The Tribunal also accepted that "extremist Sunni groups and their supporters would oppose the change in affiliation [from Sunni Muslim to Shia Muslim] strongly and that even moderate families would have some objection to the conversion". (c) However, the Tribunal concluded on the basis of a "limited number of reports" of converts being targeted that the chance of persecution faced by the First Applicant was "remote". (d) The Tribunals finding that the First Applicant faced only a "remote" risk of persecution from Sunni groups by reason of his conversion lacks the necessary logical pathway or an evident and intelligible justification with respect to its earlier finding that extremist Sunni groups would strongly oppose the conversion. 16 In rejecting that ground, the primary Judge said: [54] The mere fact that in referring to country information, the Tribunal accepted reports of converts being targeted and that extremist Sunni groups and their supporters would oppose the change in affiliation strongly, does not, as the Applicant appears to suggest, result in the inevitable conclusion that the Applicant would be seriously harmed or significantly harmed. [55] As I have stated earlier, the Tribunal in its evaluative process, made findings in respect of the Applicant's personal circumstances and had regard to country information. The approach taken did not lack an evident or intelligible justification. 17 Again, the appellants' second ground of appeal in this court corresponds with what was their second ground in the Federal Circuit Court. In support of it, counsel for the appellants made the following submission: In the appellants' case, the Tribunal accepted at [50] … that " ... extremist Sunnis groups and their supporters would oppose the change in affiliation strongly ...". There was an obvious logical inference to be drawn by the Tribunal that, by virtue of their "extremism" alone, "extremist" Sunni groups may well show their strong opposition to conversion by subjecting individual converts such as the first appellant to harm. That is, it was a necessary logical consequence of the Tribunal's finding that extremist Sunni groups would strongly oppose conversion that at least some Shia Muslim converts may be exposed to a risk of harm from those extremist groups. Given that the Tribunal accepted that the first appellant is a Shia convert, it was required to evaluate that logical consequence by reference to the first appellant and to provide an evident and intelligible justification for its conclusion that the risk of harm faced by him from extremist Sunni groups was nevertheless "remote". Instead, the only reason provided by the Tribunal for its conclusion that the risk of harm to the first appellant was "remote" was the "limited number of reports that indicate that Sunni converts to the Shia faith have been targeted …." [Emphasis in original] 18 Counsel for the appellants relied on the judgment of the Full Court in Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513, 529 [52]: The irrationality or unreasonableness of an administrative decision, it may be accepted, may provide a basis on which a decision may be set aside upon an application for judicial review. It may further be accepted that the legal standard of unreasonableness is not to be confined to those decisions which are "irrational" or "bizarre": Minister for Immigration and Citizenship v Li … (2013) 249 CLR 332. In Li, Hayne, Kiefel and Bell JJ said (249 CLR at 367 [76]): As to the inferences that may be drawn by an appellate court, it was said in House v R [(1936) 55 CLR 499 at 505] that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification. 19 In the present case, the primary Judge took the view that the reasons of the Tribunal did not lack an evident or intelligible justification. Challenging that view, the appellants point to the acceptance by the Tribunal of the facts that extremist Sunni groups and their supporters would oppose "the change in affiliation" strongly, and that even moderate families would have some objection to the conversion. The risk thus having been established, it was, it was submitted, for the Tribunal to evaluate that risk in the context of the husband's own circumstances. So much may be accepted, but the appellants' next submission that the Tribunal's use of the evidence before it - as to the paucity of reports of the targeting of converts and the attendance of the husband's own Sunni relatives at his wedding - fell short of the mark in that area should not be. 20 Although not beyond contention, the Tribunal's conclusion in para 50 of its reasons had a justification which was both evident and intelligible. The Tribunal was here presented with questions of degree. Its conclusion was that the risk of harm was remote. It was entitled to rely on the paucity of reports of converts being targeted, while at the same time accepting that there was strong opposition to conversion amongst some elements in the Sunni community. These were matters for the Tribunal. Properly understood, the appellants' complaint related not to the presence or absence of an evident or intelligible justification for the Tribunal's decision, but to the sufficiency of the justification which it favoured. The primary Judge was correct to reject that complaint. 21 For the above reasons, the appeal must be dismissed with costs. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.