ACK16 v Minister for Immigration - [2019] FCCA 2943

FEDERAL CIRCUIT COURT OF AUSTRALIA

ACK16 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 2943

Catchwords:
MIGRATION – Application for protection visa – whether Tribunal erred in its finding as to the place likely to be the applicant’s “home area” if returned – home area determination relevant to assessment as to whether applicant had a well-founded fear of persecution if returned to country of origin – matters to be considered by decision maker when carrying out an assessment as to whether a person had a well-founded fear of persecution or not – erroneous findings of Tribunal – jurisdictional error established – application allowed – decision quashed

Legislation:

Migration Act 1958 (Cth) ss.5H, 5J.

Cases cited:

CSO15 v Minister for Immigration and Border Protection & Anor (2018) 260

FCR 134.

CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496.

Applicant:

ACK16

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 71 of 2016

Judgment of:

Judge Egan

Hearing date:

23 July 2019 and 9 September 2019

Date of Last Submission:

9 September 2019

Delivered at:

Brisbane

Delivered on:

16 October 2019

REPRESENTATION

Counsel for the Applicant:

Mr A. Aleksov

Solicitors for the Applicant:

WLW Lawyers

Counsel for the Respondent:

Mr J. Barrington

Solicitors for the Respondent:

Sparke Helmore

ORDERS

The amended application for review filed on 23 July 2019 be granted.
The decision of the Administrative Appeals Tribunal made on 19 November 2015 be quashed.
A writ of mandamus issue directed to the Administrative Appeals Tribunal requiring it to determine according to law the applicant’s application for review of the second respondent's decision, and that the matter be remitted to the Administrative Appeals Tribunal for rehearing.
For the purpose of the Administrative Appeals Tribunal determining the Applicant’s application, that it be constituted by a different member than the member who handed down the decision on 19 November 2015.
The First Respondent pay the Applicant’s costs of and incidental to the hearing on 23 July 2019 and the hearing on 9 September 2019 to be agreed or failing agreement to be taxed pursuant to rule 21.11 of the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 71 of 2016

ACK16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Pakistan and a Shia Muslim. He arrived in Australia as an unauthorised maritime arrival on 22 July 2012.
The applicant had been issued with a bridging visa on 7 November 2012 which expired on 19 December 2012. On 18 December 2012 he made application for a protection visa (Class XA).
The applicant was interviewed by the delegate on 16 October 2013. On 18 October 2013 a submission was made to the delegate on behalf of the applicant by Refugee & Immigration Legal Centre Inc. On 10 February 2014 the delegate refused to grant to the applicant a protection visa. The matter was referred to the Administrative Appeals Tribunal (the Tribunal) for review upon application made by the applicant on 18 March 2014.
On 28 May 2015 the Tribunal received a further submission from Refugee & Immigration Legal Centre Inc.
A hearing was conducted before the Tribunal on 21 October 2015. At the time of the hearing the applicant was represented and gave evidence with the assistance of an interpreter.
On 27 October 2015, the Tribunal received a post-hearing submission from Refugee & Immigration Legal Centre Inc.
On 19 November 2015, the Tribunal affirmed the decision of the delegate.
On 14 January 2016 the applicant filed an originating application for review of the decision of the Tribunal. At an earlier hearing before this Court on 23 July 2019:
a)the application for reinstatement filed on 14 September 2017 was granted;
b)the application for an extension of time filed on 14 January 2016 was granted;
c)the applicant was granted leave to file and serve an amended application for review.
On 23 July 2019, the applicant’s Amended Application was marked Exhibit 2. The only Ground of such Amended Application relied upon at the hearing before this court was as follows:
“Grounds of application
3. The decision of the Tribunal is affected by jurisdictional error, in that it failed to identify the correct home region against which to conduct the evaluative task required by the Migration Act 1958 (Cth)
Particulars
The Tribunal performed its task as though Parachinar was the applicant’s home region when in fact he had not lived there since 2009 and had lived elsewhere prior to fleeing Pakistan.”
The applicant’s claims as set out in the submission to the Tribunal dated 28 May 2015 were recorded by the Tribunal at [2] of its reasons as follows:
“[2] In a submission to the Tribunal dated 28 May 2015 [name omitted] ACK16’s representatives submitted that he would face serious harm from the Tehrik-e-Taliban Pakistan (TTP) or other extremist Sunni groups in Pakistan for reasons of his Shia religion, his Turi (sic) ethnicity, his imputed political opinion in opposition to the Taliban (on account of his religion, his ethnicity, his origins from the Kurram Agency, a region with a long-standing violent conflict with the Taliban, and his extended presence as an asylum-seeker in Australia, a western country with a Christian heritage) and his membership of the particular social groups of 'Shi'a Turis [sic] from Kurram Agency' and 'Returned failed asylum seekers from a Western country'. They submitted that [name omitted] ACK16 not only feared direct targeted serious harm from Sunni extremist groups including the TTP but also the discriminatory withholding of protection for a Convention reason of the kind referred to by the High Court in Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1. Further and in the alternative they submitted that there was a real risk that [name omitted] ACK16 would suffer significant harm if he returned to Pakistan.”
The applicant’s relevant past history and claims for protection were recorded in [1] and [4] of the reasons of the Tribunal as follows:
“[1] [Name Omitted] ACK16 is a citizen of Pakistan. He has said that he comes from Parachinar in the Kurram Agency, that he belongs to the Bangash tribe and that he is a Shia Muslim. He has said that in 2009 he and his family moved to Wah Cantt (Wah Cantonment) because of the general security situation in the Kurram Agency and that he lived there until he left Pakistan in June 2012. He has said that he was not able to obtain work in Wah Cantonment, that Sunni people from Parachinar who had moved to Rawalpindi and Islamabad left threatening letters at his family's home and that he feared harm from these Sunni people if he stayed in Wah Cantonment.
[2] …
[3] …
[4] [Name omitted] ACK16 is aged in his mid-twenties. He has said that his parents and his younger brothers and sisters are still living in a rented house in Wah Cantonment. He has said that his older sister remained in Parachinar when the family moved to Wah Cantonment in 2009 because she is married and she stayed there with her family. He has said that she and her family are living in a house in College Colony in Parachinar owned by his father. [Name omitted] ACK16 said in the statutory declaration accompanying his application for a protection visa that he had grown up in Yaqubi Village, around 25 kilometres from Parachinar, but he said at the hearing before me that he had moved to Parachinar when he had been six or seven years old and that he had attended school there. He said that he and his family had lived in the house in College Colony in Parachinar owned by his father. He said that he had completed Year 8 in 2006 or 2007 and that after that he had worked in his uncle's shop in the Eidgah Market in the Parachinar Bazaar for one and a half to two years before his family had left Parachinar.”
The applicant’s sole ground of review is based upon the assertion that the Tribunal fell into jurisdictional error because it failed to relevantly consider to where the applicant would be returned for the purpose of assessing whether the applicant had a well-founded fear of persecution if returned to Pakistan or not. In that regard, ss. 5H and 5J of the Migration Act 1958 (Cth) (the Act) provide as follows:
5H Meaning of Refugee
(1) For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:
(a) in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well‑founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well‑founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well‑founded fear of persecution, see section 5J.
(2) Subsection (1) does not apply if the Minister has serious reasons for considering that:
(a) the person has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or
(b) the person committed a serious non‑political crime before entering Australia; or
(c) the person has been guilty of acts contrary to the purposes and principles of the United Nations.
5J Meaning of well‑founded fear of persecution
(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.
(2) A person does not have a well‑founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3) A person does not have a well‑founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i) alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii) conceal his or her true race, ethnicity, nationality or country of origin;
(iii) alter his or her political beliefs or conceal his or her true political beliefs;
(iv) conceal a physical, psychological or intellectual disability;
(v) enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi) alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4) If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5) Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6) In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
It was asserted by the applicant that the Tribunal had erroneously assessed the applicant’s case on the basis that his “home region” was Parachinar in circumstances where, prior to fleeing Pakistan, the applicant had not lived in Parachinar for many years. The applicant had in fact lived for 3 years in a place called Wah Cantonment. It was submitted that for the purpose of properly performing its statutory task, the Tribunal failed to undertake a “reasonableness inquiry” on the question as to whether Parachinar was the correct area to where the applicant would return, or whether either Wah Cantonment or some other area would be the most likely area to where the applicant would return. [1]
[1] Paragraphs 7 – 8 or applicant’s consolidated submissions filed on 9 July 2019.
In answer to such submission, Mr Barrington of Counsel for the first respondent submitted that the applicant had, by his representative’s submissions, conceded that Parachinar was relevantly the applicant’s “home area” to which the applicant would return for the purpose of considering, as it did, whether the applicant had a well-founded fear of persecution or not. Counsel pointed the Court to 3 instances where the applicant’s representatives had done so, namely:
a)in the representative’s pre-delegate determination letter to the Department dated 18 October 2013 where it was said:
“ … In our submission, an understanding of the basis of the applicant's fears in Kurram Agency and the extent and nature of the conflict in Kurram Agency is necessary to understanding the real chance of harm face by the applicant in his home area of Kurram Agency and throughout Pakistan. This is because the nature of the conflict in Kurram Agency and FATA is not confined to a narrow territorial issue but rather is based on issues of religion, tribal conflict and extremist Taliban/Sunni beliefs which affect the applicant not only in Kurram Agency, but also throughout the country.” [2]
b)in the representative’s pre-Tribunal hearing letter dated 28 May 2015 where it was said:
“ … The above country information, as well as [name omitted] ACK16’s personal experiences of attacks by the Taliban, support the conclusion that his fear of persecution is well-founded. In our submission, [name omitted] ACK16 faces a real risk of significant harm in his home area of Kurram Agency.” [3]
c)in the representative’s post-Tribunal hearing letter dated 27 October 2015 where it was said:
“ … We submit that the above country information supports the conclusion that [name omitted] ACK16’s fear of persecution in his home area of Parachinar is well-founded.” [4]
[2]        CB page 105.
[3]        CB page 196.
[4]        CB page 250.
It was submitted on behalf of the first respondent that the applicant, by and through his representatives, had clearly indicated that the prevailing security conditions in and about Parachinar were those to be considered by the Tribunal on the question of whether the applicant had a well-founded fear of persecution if returned to Pakistan.
The Court was further taken by Counsel for the first respondent to [21] and [24] of the reasons of the Tribunal, where it was submitted the Tribunal had “put to” the applicant that it was considering it appropriate to treat Parachinar as the applicant’s home area for the purpose of undertaking the well-founded fear of persecution assessment. Counsel later conceded, though, that despite that proposition having been put to the applicant, the applicant had at no time conceded that Parachinar was his home area.
On that issue, Mr Aleksov, Counsel for the applicant, took the Court to [5], [8], [12] and [15] of the reasons of the Tribunal where it was submitted the Tribunal had regard to clear evidence advanced on the part of the applicant that it was Wah Cantonment, and not Parachinar, which ought to be accepted by the Tribunal as being the place to which the applicant would return to in Pakistan if so required, and that, therefore, it was to that area which the Tribunal ought to have directed its attention for the purpose of carrying out any well-founded fear of persecution assessment. There is force to such argument.
It is clear that though faced with two competing “home area” propositions, the Tribunal found for Parachinar over Wah Cantonment. It did so without appropriately engaging with the direct evidence of the applicant that suggested that Wah Cantonment was the preferred place option. Nowhere in its reasons did the Tribunal give due weight to the undisputed evidence that all but one member of his family had moved from Parachinar to Wah Cantonment in 2009, and that the applicant had lived there for 3 years prior to his departure for Australia. Rather, the Tribunal based its home area/place of return consideration upon historical factors relating to the applicant’s early life, as well as to the fact that his older sister remained living in Parachinar. Such approach of the Tribunal was evidenced at [38] of its reasons where it was said:
“[38] As I put to [name omitted] ACK16, given that he has said that he worked and attended school in the town of Parachinar and that his older sister still lives there in the house in College Colony which his father still owns, I consider it appropriate to treat Parachinar as his 'home area' and to consider first whether he can go back there to live. As I put to him, the Australian Department of Foreign Affairs and Trade said in April 2015 that a 2013 truce in the Kurram Agency was still in place as of November 2014 and that the main road from Thal to Parachinar was open and was frequently used by civilian cars. It said that the Federal security forces maintained armed checkpoints on the road and that this had resulted in an improved security situation in the Kurram Agency. As I also put to him, a UNHCR mission to Kurram in April 2014 likewise concluded that it was evident that general peace had been restored in Upper and Lower Kurram.”
The Court finds that the Tribunal erred in finding that Parachinar was the applicant’s home area. On any logical assessment of the evidence before it, the Tribunal ought to have considered that the applicant’s home, if he was returned to Pakistan, would be the place where he had last lived and called home for a substantial period of time with all bar one of his family - namely in Wah Cantonment.
It was conceded by Counsel for the first respondent that if the Tribunal was wrong in finding that Parachinar was the applicant’s home area, as opposed to Wah Cantonment, then that was a material error which was jurisdictional in nature. This Court finds that it was.
Alternatively, even if the Court is wrong in so finding, the Tribunal fell into jurisdictional error in any event because it failed to engage with the issue before it, namely considering the question as to where the applicant would return to for the purpose of carrying out the well-founded fear of persecution assessment.

In CSO15 v Minister for Immigration and Border Protection & Anor (2018) 260 FCR 134 the Court (Tracey, Mortimer and Moshinsky JJ) there dealt with the question as to what a decision maker must consider when undertaking an assessment as to whether a person has a well-founded fear of persecution or not, or whether such person is at risk of significant harm, should he or she be returned to their home country. At [37] – [48] inclusive (and particularly at [42]) the Court said:
“[37] We do not consider there is any difficulty with the decision of Yates J in SZQEN. As a matter of fact in a given case, it may be appropriate for a decision-maker to identify more than one “place” as a person’s “home area” or “home region”. That will assist the decision-maker in identifying the region or place to which the decision-maker considers, as a fact finding exercise, a person is likely to return. The identification of a “home region” or “home area” is simply one method that may be useful to the finder of fact to determine the place to where an individual is likely to return. As Yates J said, these matters will always be fact dependent. In particular, there is no need for this Court to comment on his Honour’s approach, as it was an orthodox application of established principle.
[38] That said, the appellant is correct to identify an area of uncertainty in the authorities. It is true that most of the authorities which have examined relocation have either dealt with, or assumed, that a person will have one “place” from which she or he comes, and identifies as “home”, when an asylum seeker’s experience, and indeed the experience of many people from countries that have been affected by war, civil unrest and other dislocating experiences, may well be that they have lived in more than one place, and had to make a “home” in more than one place. There is something of an overlay attaching to the current approach, which may stem from unconscious assumptions made by judges about a level of stability and length of residence, and “roots” in a place, which is simply not the case for many asylum seekers, who may have been displaced more than once in their own country of nationality for a variety of reasons. As SZQEN demonstrates, and as the facts in the present appeal demonstrate, individuals’ lives may be more complicated than that.
[39] Similarly there may not always be a clear line between concepts of what is reasonable and practicable for an individual to undertake in terms of locating, or relocating to another part of a country, and the assessment of whether a person has a well-founded fear of persecution, or is at risk of significant harm, should she or he return. The approach of the majority and of Gageler J in SZSCA, as we set out at [26]-[32] above, is an example. Contrary to the appellant’s submissions, we do not consider that the High Court’s decision in SZSCA (whether the majority or Gageler J) marks some entirely new approach to the Art 1A assessment, which requires considerations of reasonableness and practicability to be injected into every decision-making exercise about whether a person has a well-founded fear of persecution in her or his country of nationality.
[40] The need for clear fact finding by a decision-maker, if there is reliance on a finding that a particular area is an applicant’s “home area” and is a location in which the applicant has no well-founded fear of persecution, or fear of significant harm, was emphasised by Kenny J in SZQPY at [80]-[86]. Her Honour also noted that in recent years the concept of a “home area” or “home region” has become an increasingly important but complicated terrain for a decision-maker to travel, and that the analysis may be further complicated because an applicant may have more than one “home area”, or may have none. However, as her Honour noted these are not legal issues, but rather ones concerning the nature of the fact finding in which a decision-maker must engage.
[41] In summary, we do not accept there are any differences in principle expressed in these three decisions, and the use of the term “home area” or “home region” in a decision-maker’s reasons is not immediately suggestive of any error. However, as Kenny J observed in SZQPY, some caution is needed by decision-makers in their fact finding, to ensure that they do address the correct question.
[42] The correct question is: to where will an applicant return, or be returned? Identifying a place which may have, in the past, been a person’s “home area” or “home region”, may assist in answering that question. But it is not, in and of itself, the answer to the question which must be asked for the statutory task to be lawfully performed. That is because under both Art 1A and the complementary protection regime, what is to be examined is the place to which a person will be returned, and what risks a person faces on return to that place. At least one location within a country of nationality must be identified for this task to be undertaken. Ascertaining a person’s former “home area” or “home region” may be an important step along the way in a decision-maker’s fact finding, but it is not the end of the task. As SZSCA illustrates, once a decision-maker has identified a region or place to which it is likely a person will return, an assessment of the risks a person might face on return to that place or region may, in some factual circumstances, require consideration of what is reasonable and practicable in terms of how that person will live and work in that place. Separately, and distinctly, because it is sourced in a different limb of Art 1A (as Gageler J pointed out in the passages we have extracted at [29] above), this assessment will invariably be required if the region or place is “new” for the person, and internal relocation (or “internal protection”) principles apply. If it is not a “new” area, then decision-makers will need to remain alive to the factual issues raised in cases such as SZSCA.
(Emphasis added)
[43] It is necessary to add one further clarification. In his written submissions, the Minister relied on the passage from the majority reasons in SZSCA at [23] where their Honours said:
If a person could have relocated to a place within his own country where he could have no well-founded fear of persecution, and where he could reasonably be expected to relocate, then the person is outside the country of his nationality because he has chosen to leave it and seek asylum in another country.
[44] The Minister emphasised the words “to a place” in this passage, and made the following submission:
In other words, a person will not be a refugee by reason of the relocation principle if there is “a place” in the country of nationality where the person will have no well-founded fear of persecution. It follows that, where a person has more than one “home region” (from where any relocation would occur), the person will not be a refugee if the person does not have a well-founded fear of persecution in either of those regions.
(Footnote omitted.)
[45] Read literally, that submission cannot be accepted. A decision-maker will not perform the task required of her or him if she or he simply searches for “a place” within a country of nationality where a particular applicant will not have a well-founded fear of persecution. The decision-maker must assess, on the material before her or him, the place or places to which an individual is likely to return. The first step of the decision-maker’s assessment is to make findings about, at least, one of those places.
[46] If a decision-maker finds the place to which an individual is likely to return is one where the individual’s fear of persecution is well-founded, or where the individual faces a real risk of significant harm, then the decision-maker should determine whether there are any other places to which the individual is likely to return, and then engage in the same fact finding.
[47] It is only if the place or places to which an individual is likely to return are places in which the person has a well-founded fear of persecution or faces a real risk of significant harm, that a decision-maker must look at any other places in the individual’s country of nationality where neither of those kinds of risks exist. That is: places that are new or unfamiliar locations for the individual. These must be places to where it is reasonable and practicable to expect that individual to re-locate, if that terminology is to be used. It is not simply a matter of a decision-maker finding “a place” where an individual might not be exposed to persecution for a Convention reason, or to the risk of significant harm. At this final step, there must be an assessment of the reasonableness and practicability of the particular individual living in that (new) place, as the authorities have explained that assessment.
[48] These will be fact intensive analyses, very much dependent on what an individual’s evidence and narrative is about the place or places in her or his country of nationality to which she or he has historic connections. The slimmer or more tenuous the connection in the past, or the more complex the question of how an individual might live in a region to which she or he has some connections (as in SZSCA), then the more the analysis may need to turn to questions of reasonableness and practicality.
It is clear that the Tribunal did not relevantly descend to a consideration of the options as to where the applicant would return to in Pakistan if so required. It did not appropriately or logically evaluate where it was likely the applicant would return to, based upon a consideration of the evidence before it. For erroneous historical and other reasons, the Tribunal illogically found that Parachinar was such a place. [5] Such error was substantial and material. As such it constituted jurisdictional error on the part of the Tribunal.
[5] CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 at [60] per
The applicant has established jurisdictional error on the part of the Tribunal. The application for review is granted.
The Court will hear the parties as to costs.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:

Date: 16 October 2019

CORRECTIONS: 22/10/2019

Identifying features removed from paragraphs [10], [11], [14] and [18].

McKerracher, Griffiths and Rangiah JJ.