MZZIH v Minister for Immigration and Border Protection

THE federal circuit court'S DECISION 5 The appellant sought judicial review in the FCC of the Tribunal's decision. The grounds of the amended application included that: (a) the Tribunal failed to consider the component integers of the appellant's claim to fear harm as a Shia Muslim of Hazara ethnicity ("Ground 1"); and (b) in considering whether the appellant faced a "real chance" of persecution (s 32(2)(a) of the Act) or significant harm (s 32(2)(aa) of the Act), the Tribunal applied the wrong test ("Ground 2"). 6 On Ground 1, the FCC found that on a fair reading of the Tribunal's reasoning, it was clear that the Tribunal was aware that the appellant was a Shia Muslim of Hazara ethnicity and considered his claims as such and their component integers. 7 On Ground 2, the FCC found that the Tribunal's application of the "real chance" of persecution test revealed no error. 8 The FCC concluded that as there was no jurisdictional error in the Tribunal's decision, the application for judicial review must be dismissed.

appeal to this court 9 On appeal, the appellant again advanced grounds 1 and 2 but this time as his sole grounds of appeal. 10 On Ground 1, the appellant contends that the Tribunal fell into jurisdictional error because it considered the appellant's claim based on his ethnicity and religion "separately, but not together" and failed to consider the appellant's claims "cumulatively". It was argued that it was not sufficient for the Tribunal to examine the appellant's Shia religion and Hazara ethnicity separately because the claim as advanced was that his ethnicity as a Hazara made it more likely that he will be targeted as a Shia. It was submitted that by failing to consider the claim that he is a Shia who is more prominent because of his Hazara ethnicity, the Tribunal made a jurisdictional error in that it failed to consider an integer of the claim. I agree. 11 It is clear from a fair reading of the Tribunal's decision as a whole that the Tribunal appreciated that that an integer of the appellant's claim was that his ethnicity as a Hazara made it more likely that he will be targeted not only for reasons of his ethnicity but also for reasons of his religion as a Shia. The Tribunal considered whether, and accepted that, Hazaras in Quetta have been the subject of numerous sectarian attacks. Having so found, the Tribunal then went on to consider whether it was reasonable to expect the appellant to relocate to some other part of Pakistan. The Tribunal correctly considered whether the evidence suggested that the Hazaras in Peshawar were being targeted for reasons of their race. However, the Tribunal failed to go on to consider whether the Hazaras as a group were being targeted in Peshawar for reasons of their religion as Shias. The Tribunal only considered whether there is a real chance that the appellant will be persecuted "in the context of sectarian attacks on Shia Muslims". Given the evidence before the Tribunal that almost all Hazaras are Shia Muslims and the finding of the Tribunal that Hazaras in Quetta have been targeted for sectarian attacks, it was necessary for the Tribunal also to deal with the question of whether the appellant's ethnicity as a Hazara made it more likely that he will be targeted in Peshawar for religious reasons. Although the Tribunal claimed to have taken into account the cumulative effect of the appellant's ethnicity as a Hazara, it in fact failed to do so in considering whether the appellant had a well-founded fear of persecution for religious reasons as a Hazara Shia and thereby fell into legal error: Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802 at [42] per Allsop J (with whom Spender J agreed). 12 This conclusion means that the appellant must succeed on both grounds. Having earlier identified that Hazaras in Quetta have been targeted for sectarian attacks, the appellant's ethnicity as a Hazara was therefore relevant to determining whether his fear of persecution for reasons of religion was well-founded. The Tribunal fell into legal error by excluding that matter from its consideration when determining the question as to whether the appellant's fear of persecution for reasons of religion was well-founded. The reasoning of the Tribunal focused only on the remoteness of an individual Shia Muslim being targeted and in so doing, failed to consider the particular circumstances of the appellate in forming the opinion that he could relocate to Peshawar to avoid the risk of persecution for reasons of religion: Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18 at [80]-[82] per McHugh J).

CONCLUSION 13 The appeal should be allowed and the following orders made:

1. The appeal be allowed.
2. The orders of the Federal Circuit Court made on 20 September 2013 be set aside.
3. The proceeding be remitted to the Refugee Review Tribunal for determination in accordance with the law.
4. The first respondent pay the appellant's costs of the appeal and the proceeding below. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies.