AEG15 v Minister for Immigration
[2017] FCCA 2644
•3 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AEG15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2644 |
| Catchwords: MIGRATION – Application for judicial review of decision of Refugee Review Tribunal (Tribunal) affirming decision of delegate of the Minister for Immigration not to grant Protection visa – whether in affirming the delegate’s decision on the ground that it was reasonable for the applicant to relocate to another part of his country of origin the Tribunal failed to consider whether the applicant would face risk of harm in the place of relocation that was less than serious harm or which did not amount to persecution – jurisdictional error found. |
| Legislation: Migration Act 1958 (Cth), s.91R Tribunals Amalgamation Act 2015 (Cth), Schedule 9, Item 15AG |
| Cases cited: MZYQU v Minister for Immigration and Citizenship [2012] FCA 1032 MZZZA v Minister for Immigration and Border Protection [2015] FCA 594 Randhawa v Minister of Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 |
| Applicant: | AEG15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 677 of 2015 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 19 October 2016 |
| Date of Last Submission: | 19 October 2016 |
| Delivered at: | Sydney |
| Delivered on: | 3 November 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | Parish Patience Immigration Lawyers |
| Counsel for the First Respondent: | Mr B Kaplan |
| Solicitors for the First Respondent: | MinterEllison |
ORDERS
The decision of the Refugee Review Tribunal made on 10 November 2014 affirming the decision of a delegate of the first respondent made on 21 August 2013 not to grant the applicant a Protection (Class XA) visa (Protection visa) is quashed.
The Administrative Appeals Tribunal is substituted for the Refugee Review Tribunal as the second respondent.
Pursuant to Item 15AG of Schedule 9 to the Tribunals Amalgamation Act 2015 (Cth) the Administrative Appeals Tribunal determine according to law the application made to the Refugee Review Tribunal to review the decision of a delegate of the first respondent made on 21 August 2013 not to grant the applicant a Protection visa.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 677 of 2015
| AEG15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The question in this application for judicial review is whether, in affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa), the Refugee Review Tribunal (Tribunal) misunderstood or misapplied the legal principles concerning relocation.
Circumstances out of which issue arises
In a statutory declaration made on 14 December 2012 that formed part of his application for a Protection visa the applicant claimed as follows:[1]
a)The applicant is a national of Pakistan and a Shia Muslim. He was born and raised in the Kurrum Agency of the Khyber Pukthunkwa Province of Pakistan. The applicant’s mother passed away when the applicant was a baby, and he was brought up by his maternal grandparents.
b)The applicant’s family had a farm in T village. That village was approximately half an hour away from a town that had been completely taken over by the Taliban. The applicant lived at the farm until 2008 when he moved to Parachinar.
c)Although the applicant has a lot of trouble remembering what happened in “a logical fashion”, he knows he saw with “his own eyes” dead bodies that had been chopped to pieces. The applicant has also seen videos of beheadings the Taliban sent to Shia people in the area.
d)In 2006 a conflict started in the area in which the applicant lived. In that year the “Taliban blocked the roads”. There were “no supplies” to the applicant’s area, and the Taliban killed two people from the applicant’s village.
e)The applicant received a number of threatening phone calls. In one of those calls someone threatened to cut the applicant into pieces and destroy the applicant’s family’s house, and they would do this because the applicant was the eldest son of his family.
[1] CB78-79
In his entry interview[2], and before the delegate[3], the applicant claimed his cousin had been kidnapped from Peshawar. In a submission made to the Tribunal by the applicant’s representative,[4] the applicant additionally claimed that his father is well-known and widely respected in the community, and was known to have made comments critical of the Taliban. For that reason, the applicant’s father received threatening calls from the Taliban “trying to get [the applicant’s] father on their side and convincing him to say positive things about the Taliban instead”.
[2] CB7-21
[3] CB261, [24]
[4] CB171-192
Tribunal decision
The Tribunal did not accept the applicant had been specifically targeted or sought in Parachinar by the Taliban or by any other militant group.[5] The Tribunal also doubted the truthfulness of the applicant’s claims that his father received threatening phone calls,[6] and that the applicant’s father was well-known in the community.[7] The Tribunal accepted, however, that the applicant may have witnessed the effects of bomb blasts against the Shia community in Parachinar,[8] and it was prepared to accept the applicant’s cousin was the victim of a kidnapping because he is a Shia.[9] The Tribunal also accepted:
a)the applicant left Pakistan because he genuinely feared harm in Parachinar, given the nature of the threats made towards Shias generally by the Taliban and its associated groups, and as a result of continued attacks against places were Shias congregate;[10]
b)the Taliban and its associated groups have waged a campaign of violence against Shias throughout Pakistan, which is consistent with the applicant’s claims for protection;[11]
c)since at least April 2007 there has been considerable violence in Parachinar between Turi Shias and members of the local Sunni Bangash tribe, which has resulted in the loss of almost 1,500 lives and injury to thousands;[12]
d)on the basis of country information dealing with the history of conflict in the region during 2011 to 2014, the situation in the Kurram Agency, including Parachinar, remains volatile;[13] and
e)the applicant and his family have been affected by the situation on the Parachinar-Thall Road and, due to their fear of being targeted, they have not travelled on that road and this has resulted in the shortage of goods; there have continued to be incidents of extreme violence occurring on that road; and the authorities have been powerless to prevent attacks against persons travelling on the Parachinar-Thall road.[14]
[5] CB258-259, [17]
[6] CB259, [20]
[7] CB259, [21
[8] CB261, [24]
[9] CB261, [24]
[10] CB261, [24]
[11] CB261, [24]
[12] CB261, [24]
[13] CB261-262, [25]-[26]
[14] CB262-263
Having regard particularly to the continuing nature of violent attacks against Shias using the Parachinar-Thall Road, the Tribunal was satisfied that the applicant faces a real chance of persecution for reasons of his religion and ethnicity if he returns to his home in Parachinar, now or in the reasonably foreseeable future.[15] The Tribunal also found that the protection offered by the Pakistani authorities in the Kurram Agency to be inadequate and not of a standard that its citizens are entitled to expect; and that there is a real chance the applicant would be harmed on his return to Parachinar because he is a Shia, and a Pashtun from the Bangash Shia tribe in Parachinar.[16]
[15] CB263, [27]
[16] CB263, [27]
Tribunal’s reasons on relocation
Having made these findings, the Tribunal “considered whether there is a real chance that the applicant will suffer harm if he relocated to another part of Pakistan, such as Islamabad or Rawalpindi”.[17] The Tribunal began by identifying what it regarded to be the relevant principles it was required to apply when considering the question of relocation:[18]
The range of factors which are relevant in any particular case as to whether relocation is reasonably available will be determined by the case sought to be made out by the applicant.[[19]] Thus, a person will be excluded from refugee status if it is reasonable, under all the circumstances, in the sense that it is practicable, to expect him or her to seek refuge in another part of the country. ‘Reasonable’ will depend upon the particular circumstances of the applicant and the impact of relocation upon that person within the person’s country. However, whether relocation is reasonable is not to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, political and socio-economic rights. The Convention is concerned with persecution in the defined sense, and not with living conditions in a broader sense.[[20]]
[17] CB263, [28]
[18] CB263, [28]
[19] In a footnote, the Tribunal referred to Randhawa v Minister of Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at page 443 (Black CJ) and page 453 (Whitlam J)
[20] In a footnote, the Tribunal referred to SZATV v Minister for Immigration and Citizenship [2007] HCA 40 and SZFDV v Minister for Immigration and Citizenship [2007] HCA 41
The Tribunal then said it “has considered, therefore, whether there is a real chance that the applicant would face persecution for a Convention reason if he were to move to another area of Pakistan, and whether in his particular circumstances it is reasonable and practicable for him to live elsewhere in Pakistan” and that, in considering this issue, the Tribunal had regard to, among other things, the applicant’s representative’s submissions and country information.[21]
[21] CB263, [29]
The Tribunal then proceeded by first considering the applicant’s submission that the violence against Shias is prevalent throughout Pakistan, and that it would be unsafe for him to reside anywhere in Pakistan because he will be imputed with a political opinion opposed to the Taliban.[22] The Tribunal addressed this submission as follows:
a)The Tribunal accepted Shias have been targeted throughout Pakistan and that extremist groups operate throughout Pakistan, but it was not satisfied that the applicant’s evidence or the independent evidence established that all Shias “face a real chance of serious harm” in all parts of Pakistan.[23]
b)The Tribunal accepted the applicant has a Shia name, his identity card shows he is from Parachinar, his accent and dialect may identify the applicant as being from Parachinar, and the applicant has scarring on his back in accordance with the performance of Shia religious rites. The Tribunal, however, did not accept the applicant will be identified as a Shia from his appearance.[24]
c)Although it accepted that some Turi Shias from Parachinar were kidnapped in Islamabad in December 2011, the Tribunal considered these incidents to be isolated, and that there was no evidence of ongoing targeting of Turi or Bangash Shias in Islamabad or Rawalpindi.[25]
d)The Tribunal accepted that Shias congregate together in places to which they have fled and that they have done so, at least in part, through fear. The Tribunal was of the view, however, that equally there are other reasons why Shias congregate in particular areas, such as their desire to worship at the same places and to reside in areas with like-minded people.[26] While the Tribunal accepted that Shias congregating together may make them more vulnerable, the Tribunal was not satisfied there is a real chance the applicant would be a victim of isolated attacks on Shias, or that “the isolated incidents make it unreasonable or impracticable for the applicant to relocate to Islamabad or Rawalpindi”.[27] In reaching this conclusion, the Tribunal considered the size of the population and the limited number of reports dating back several years of attacks in Rawalpindi or Islamabad.[28]
e)The Tribunal accepted there have been isolated attacks on Shia religious processions and places where large numbers of Shias are likely to congregate; there was some evidence terrorist groups operate throughout Pakistan, including in urban areas; government buildings have been attacked in Islamabad; and where the applicant is most likely at risk because he is a Shia is when he attends a Shia religious procession or when he is in a location where large numbers of Shias are going to gather. In the context of the size of the Shia population, however, the Tribunal considered the attacks on Shias on those occasions to be sporadic, and, therefore, it found the chance of the applicant being harmed on that ground to be remote.[29]
f)The Tribunal was also not satisfied that the applicant would have to modify his religious practice. Given the low levels of sectarian violence in Islamabad and Rawalpindi and the applicant’s lack of a particular profile such that he would be sought by the Taliban or any of its associated extremist groups, combined with the large number of Shia Muslims in Pakistan, the Tribunal was satisfied that the chance of the applicant being harmed in an act of sectarian or generalised violence in Rawalpindi or Islamabad “is remote”.[30]
[22] CB264, [30]
[23] CB265, [31]
[24] CB265, [32]
[25] CB265, [32]
[26] CB265, [32]
[27] CB265, [32]
[28] CB265, [32]
[29] CB265, [33]
[30] CB265, [33]
The Tribunal concluded this part of its reasons as follows (emphasis added):[31]
Accordingly, on the basis of the evidence before it, the Tribunal is not satisfied that there is a real chance that the applicant would suffer serious harm for reasons of his Shia religion, or the fact that he is Bangash, Pashtun from Parachinar, in Islamabad or Rawalpindi.
[31] CB265, [33]
The Tribunal next referred to the reasons the applicant’s representative submitted “it is not reasonable for the applicant to relocate elsewhere in Pakistan”.[32] The reasons the Tribunal identified were the applicant’s mental health problems resulting from the loss of his mother at an early age; the applicant’s family is in debt as a result of their borrowing money to enable the applicant to come to Australia; the applicant’s having not previously resided anywhere else in Pakistan; the applicant’s inability to obtain accommodation because he is a Shia from Parachinar; the applicant’s having no money or resources of his own to enable him to relocate; the applicant will be unable to practice his religion freely in another part of Pakistan and he will have to modify his religious practice; the applicant’s brother has been taken out of school because his father cannot afford the fees and the applicant’s brother is now suffering from depression; the applicant’s family lives in poverty and his father is in a parlous financial position; the applicant has a timid personality and relied on his father to give him medication; and, although the applicant is not currently receiving treatment for his mental health condition, these problems manifested themselves in Australia and they will continue to manifest themselves in Pakistan.[33]
[32] CB265, [34]
[33] CB266, [34]
The Tribunal addressed these submissions by making the following findings:
a)The Tribunal accepted that, while in Pakistan, the applicant had previously resided only in Parachinar. It noted, however, that the applicant has lived in Australia for over two years, he had made the perilous and dangerous journey to Australia by boat, and he has since settled in Australia, first in Melbourne, and then in Sydney.[34]
b)The applicant received ten years of education and speaks both Pashto and Urdu.[35]
c)The Tribunal had some doubts about the applicant’s claim his father was in a parlous financial situation; but even if it were the case the applicant’s father went into debt for the applicant to travel to Australia, the Tribunal did not accept that this made it unreasonable for the applicant to live elsewhere in Pakistan and to obtain employment and re-establish himself in Pakistan.[36]
d)The applicant was employed in the construction industry for several years before he departed Pakistan. The Tribunal was not satisfied there is any evidence the applicant will be unable to obtain employment on his return to Pakistan.[37]
e)The Tribunal was not satisfied that the applicant’s being a Pashtun, Bangash Shia from Parachinar will result in his being discriminated against in obtaining accommodation or employment in Islamabad or Rawalpindi.[38]
f)The Tribunal was prepared to accept the applicant has a “timid personality”, and that the applicant suffers from anxiety and depression arising from the death of his mother at an early age, and from his having witnessed some violent incidents in Parachinar. The Tribunal was not satisfied, however, the applicant’s mental health condition would prevent the applicant from obtaining work and integrating into society in either Islamabad or Rawalpindi. The Tribunal relied on the applicant’s evidence that he took medication for his mental health condition which he obtained in Pakistan which assisted him to work for several years in Parachinar, and the applicant’s travelled to and within Australia.[39]
g)The Tribunal did not accept the applicant has to modify his conduct in Islamabad or Rawalpindi “in terms of the practice of his religion to avoid harm”.[40] The Tribunal referred to the reasons it had given earlier why the risk to the applicant suffering serious harm in Islamabad or Rawalpindi is remote. The Tribunal noted that in making this assessment it considered the failure by Pakistani authorities to prevent attacks on Shias and the operation of extremist groups in Pakistan. That matter, however, did not alter the Tribunal’s view that the risk of the applicant suffering serious harm, either in Rawalpindi or Islamabad, is remote.[41]
h)The Tribunal then said:[42]
In all the circumstances, the Tribunal is satisfied that it is reasonable for the applicant to relocate to Islamabad or Rawalpindi, its twin city.
[34] CB266, [35]
[35] CB266, [35]
[36] CB266, [35]
[37] CB266, [35]
[38] CB266, [35]
[39] CB266-267, [36]
[40] CB267, [36]
[41] CB267, [36]
[42] CB267, [36]
The Tribunal concluded its consideration of the issue of relocation as follows (emphasis added):[43]
The Tribunal finds, therefore, that there is not a real chance that the applicant will be persecuted for reasons of his religion, ethnicity, membership of the Bangash tribe, particular social group or imputed political opinion or for any other Convention reason, either individually or cumulatively, now or in the reasonably foreseeable future, in another part of Pakistan, such as Islamabad or Rawalpindi. Accordingly, the Tribunal finds that the applicant does not have a well founded [sic] fear of persecution if he returns to Pakistan now or in the reasonably foreseeable future.
[43] CB267, [38]
Ground of application and parties’ submissions
The application contains the following ground:
The Tribunal erred in applying the test of a well founded [sic] fear of persecution for the purposes of s. 36(2)(a) of the Migration Act.
Particulars
(a)The Tribunal erred in its consideration of whether the applicant could relocate within Pakistan by conflating the test [of] reasonableness of relocation with that of whether he had a well founded [sic] fear of persecution in a place of possible relocation.
Counsel for the applicant submits the Tribunal made the same error as the Independent Merits Reviewer (IMR) was held to have made in MZYQU v Minister for Immigration and Citizenship.[44] In that case the IMR was held to have correctly considered whether the applicant faced a risk of “serious harm” as required by s.91R(2) of the Migration Act 1958 (Cth) (Act) in assessing whether it was reasonable for the applicant to relocate to another part of the applicant’s country of nationality; but it was also held the IMR erred by considering that the risk of “serious harm”, as required by s.91R(2) of the Act, was the only level or kind of harm that could affect the reasonableness of the relocation.[45]
[44] [2012] FCA 1032
[45] T9.10
Counsel for the Minister, on the other hand, submits the Tribunal in the case before me did not make an error of the sort the IMR was found to have made in MZYQU. In that case, counsel for the Minister submits, the IMR consciously ignored harm of a level that did not amount to “serious harm”. By contrast, counsel for the Minister submits the Tribunal in the case before me made findings about whether the applicant had a well-founded fear of persecution in the putative places of relocation and, in so doing, the Tribunal not only considered the risk of “serious harm” as defined in s.91R of the Act but also the risk of “harm” of an unspecified level and kind, generalised or sectarian violence, and isolated attacks on Shias.[46] Counsel for the Minister relies[47] on the observations made by Mortimer J in MZZZA v Minister for Immigration and Border Protection that the Tribunal is entitled to use its earlier findings on there being a remote chance of serious harm (that is, an absence of a well-founded fear of persecution in the suggested place of relocation) in deciding whether relocation is reasonable in the circumstances.[48]
[46] Outline of Submissions of the First Respondent, [16]
[47] Outline of Submissions of the First Respondent, [18]
[48] [2015] FCA 594 at [39], [41] and [42]
The resolution of the competing submissions turns on the consideration of two things. The first is the relevant principle of relocation, and, in particular, the relevance that the risk of harm to an applicant plays in those principles. The second is the proper construction of the Tribunal’s reasons.
The relocation principle and relevance of risk of harm
In SZSRQ v Minister for Immigration I identified the major authorities relevant to the relocation principle, and set out passages from those authorities.[49] I do not propose to reproduce here what I said there. I do repeat, however, what I found in SZSRQ is the effect of the authorities; namely, that when considering the relocation principle the decision-maker must address two distinct questions.[50] These are:
a)Having accepted that the applicant has a well-founded fear of persecution for a Convention reason if he or she returned to a particular region of the country of his or her nationality, is there a different region (place of relocation) in that country where, objectively, there is no “appreciable risk of the occurrence of the feared persecution”?[51]
b)If (a) is answered in the affirmative, is it reasonable, in the sense of practicable, to expect the applicant to be sent to the place of relocation having regard to:
i)the particular circumstances of the applicant;
ii)the circumstances the applicant would reasonably be expected to face in the place of relocation; and
iii)the impact on the applicant of being sent to the place of relocation?
[49] [2014] FCCA 2205
[50] [2014] FCCA 2205 at [45]
[51] SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 at page 26, [23]
As I noted in SZSRQ, one item of information may be relevant to both questions.[52] But because there are two distinct questions, that information might be relevant in different ways. That is the case with information concerning the risk of harm to the applicant in the place of relocation (risk-of-harm-information). The relevance of risk-of-harm-information to the first question is whether the applicant will or will not face persecution in the place of relocation; that is, whether the applicant will face an appreciable risk of “serious harm” in that place. In relation to the second question the relevance of risk-of-harm-information is whether, given the risk of harm the applicant will face in the place of relocation, together with all other relevant matters, it is nevertheless reasonable, in the sense of practicable, for the applicant to relocate to the place of relocation.
[52] [2014] FCCA 2205 at [46]
This way of stating the principles is broader than the way the principles were applied in MZYQU. Nevertheless, the decision and reasoning in MZYQU illustrate these principles. The error Dodds-Streeton J in MZYQU found the IMR to have made was that the IMR considered the relevance of the risk-of-harm-information to the applicant only from the point of view of whether it constituted “serious harm” within the meaning of s.91R of the Act, when the IMR ought also to have considered the risk-of-harm-information in its assessment of whether it was reasonable, in the sense of practicable, for the applicant to relocate to the place of relocation.
Construction of Tribunal’s reasons
Whether the Tribunal, like the IMR in MZYQU, considered the relevance of risk-of-harm-information only in its assessment of whether the applicant would face “serious harm” in the place of relocation is to be determined by considering the structure of its reasons, and the expressions it used.
The Tribunal’s reasoning on relocation, which I have set out earlier in these reasons, may be broken down into the following elements:
a)First, the Tribunal stated it had considered two things: whether there is a real chance the applicant would face persecution for a Convention reason if he were to move to another area of Pakistan; and whether in his particular circumstances it is reasonable and practicable for the applicant to live elsewhere in Pakistan.[53]
b)Second, the Tribunal addressed the applicant’s representative’s submissions about the violence to which Shias are exposed in Pakistan.[54] The Tribunal ended this part of its reasons by concluding it was not satisfied “there is a real chance that the applicant would suffer serious harm for reasons of his Shia religion, or the fact that he is Bangash, Pashtun from Parachinar, in Islamabad or Rawalpindi”. [55]
c)Third, the Tribunal addressed the applicant’s submissions why “it is not reasonable for the applicant to relocate elsewhere in Pakistan”.[56] With one possible exception, the Tribunal did not consider risk-of-harm-information in this part of its reasons. The possible exception relates to the Tribunal’s consideration of whether the applicant would need to modify his conduct in Islamabad or Rawalpindi “in terms of the practice of his religion to avoid harm.”[57] The Tribunal dealt with that submission by referring to its earlier findings that the risk of the applicant suffering serious harm in Islamabad or Rawalpindi is remote. The Tribunal noted it was aware authorities in Pakistan failed to prevent attacks on Shias and the operation of extremists in Pakistan, but that this did not alter the Tribunal’s view that it considered as remote the risk of serious harm to the applicant, either in Rawalpindi or Islamabad.[58]
[53] CB263, [29]
[54] CB264-265, [30]-[33]
[55] CB265, [33]
[56] CB265, [34]
[57] CB267, [36]
[58] CB267, [36]
I next turn to the expressions the Tribunal used in its reasons. It used the expression “real chance that the applicant would suffer serious harm” when stating its conclusion about the risk of harm the applicant would face in Islamabad or Rawalpindi;.[59] and it used the expression “real chance that the applicant will be persecuted” when it stated its overall conclusion concerning relocation. [60]
[59] CB265, [33]
[60] CB267, [38]
Counsel for the Minister pointed to passages from the Tribunal’s reasons where it referred to risk-of-harm-information, and the reasonableness of the applicant’s relocating to another part of Pakistan, without referring to the harm being “serious harm”. In his written submissions, counsel for the Minister referred to the following:[61]
a)In the final sentence of paragraph 32 of its reasons the Tribunal considered whether “isolated attacks” would make it unreasonable or impracticable for the applicant to relocate to Islamabad or Rawalpindi.
b)In the fifth-last sentence of paragraph 36 of its reasons the Tribunal referred to its earlier finding about the applicant’s not having to modify his conduct in the place of relocation to avoid “harm”. The Minister submits this is a reference to harm of an unspecified kind and level, not just “serious harm”.
c)In paragraphs 34 to 36 of its reasons the Tribunal considered the applicant’s personal circumstances.
d)In the final sentence of paragraph 36 of its reasons, the Tribunal concluded it was reasonable for the applicant to relocate “[i]n all the circumstances” and those circumstances included matters discussed in its reasons and matters which pertained to the risk of harm of generalised and sectarian violence in Islamabad and Rawalpindi.
[61] Outline Submissions of the First Respondent, [18]
In his oral submissions counsel for the Minister also referred to the following:
a)In the first sentence of paragraph 30 of its reasons the Tribunal referred to the applicant’s claim that violence against Shias is prevalent throughout Pakistan, which counsel submitted is a reference to “generalised violence”.[62]
b)In paragraph 31 of its reasons the Tribunal accepted there remains “some risk of harm throughout Pakistan”, including in cities such as Islamabad and Rawalpindi.[63]
c)In the middle of paragraph 31 of its reasons the Tribunal referred to the “lower levels of generalised and sectarian violence relative to the rest of Pakistan” in Islamabad and Rawalpindi. [64]
[62] T16.6
[63] T16.6
[64] T16.6
That the Tribunal in some parts of its reasons used expressions to denote harm less than “serious harm” does not by itself show the Tribunal considered that harm less than “serious harm” was relevant to the question of whether it was reasonable, in the sense of practicable, for the applicant to relocate to Islamabad or Rawalpindi. What must be assessed is the relevance the Tribunal attached to the risk of harm it found was less than “serious harm”.
In my opinion, the only relevance the Tribunal attached to such risk of harm was whether it showed the applicant would face a real chance of “serious harm” in Islamabad or Rawalpindi or, what amounts to the same thing, namely whether there is “a real chance that the applicant will be persecuted”[65] if he were to relocate to Islamabad or Rawalpindi. The Tribunal did not consider whether the harm to the applicant that it identified to be less than serious harm, or less than harm that would amount to persecution, was relevant to assessing whether it was reasonable, in the sense of practicable, for the applicant to relocate to Islamabad or Rawalpindi. That is apparent from the structure of the Tribunal’s reasons. It is also apparent from its reasons that the Tribunal did not ask itself whether the risk of harm to the applicant it found was less than serious harm nevertheless was such as to render it reasonable for the applicant to relocate to Islamabad or Rawalpindi.
[65] CB267, [38]
Counsel for the Minister submitted that the approach the Tribunal took in the case before me was the same as that taken by the Tribunal in MZZZA v Minister for Immigration and Border Protection.[66] The structure of the Tribunal’s reasoning on relocation in that case was as follows:
a)Having found the appellant had a well-founded fear of persecution in the area from which he came, the Tribunal had to consider whether it would be reasonable for the appellant to relocate to some other part of his country of nationality where he does not have a well-founded fear of persecution.[67]
b)The Tribunal made findings about relocation based on various aspects of the appellant’s claims. As found by Mortimer J, in this part of its reasons the Tribunal “examined whether the appellant had a well-founded fear of persecution in those areas on the bases identified, and also whether it would be reasonable for the appellant to relocate to those places given his claimed fears”.[68]
c)The Tribunal concluded the appellant did not face a real chance of serious harm in the place of relocation, and then considered whether it would be reasonable for the appellant to relocate to the place of relocation in the appellant’s particular circumstances.[69]
d)The Tribunal then considered a number of aspects relevant to the appellant’s relocation other than the appellant’s claimed fears of harm in the place of relocation and was not satisfied these matters prevented its being reasonable for the appellant to relocate to the place of relocation.[70]
[66] [2015] FCA 594
[67] [2015] FCA 594 at [13]
[68] [2015] FCA 594 at [14] (emphasis added)
[69] [2015] FCA 594 at [15]
[70] [2015] FCA 594 at [17]
In MZZZA the appellant submitted that, based on the structure of its reasons the Tribunal considered the risk of harm to the appellant in the place of relocation exclusively through the prism of what would satisfy the threshold of “a well-founded fear of persecution”. It was also submitted the Tribunal “tacked on” its findings about whether the appellant had a well-founded fear of persecution to whether it was reasonable for the appellant to relocate to the place of relocation.[71] Mortimer J rejected the appellant’s submissions. Her Honour accepted the Tribunal relied on its findings of whether the appellant had a well-founded fear of persecution as part of its consideration about the reasonableness of relocation; but her Honour found there was nothing impermissible about this:[72]
I do not consider the Tribunal approached its task on the basis that if it determined the appellant did not have a well-founded fear of persecution in Islamabad (for example) that would inevitably make this relocation reasonable. This is what the appellant’s submissions amounted to. In my opinion the Tribunal’s reasons disclose it appreciated the matters it needed to consider were distinct, both qualitatively and substantively. In each of these paragraphs it addressed the subject matter of the appellant’s objections to relocation based on his fears of harm, and it did so both through the prism of well-founded fear of persecution, and then by asking whether, if there was a risk of harm less than serious harm, and less than a real chance of such harm occurring, it was nevertheless reasonable to expect him to relocate. There is nothing legally impermissible in this approach.
[71] [2015] FCA 594 at [39]
[72] [2015] FCA 594 at [41]
In my opinion, what Mortimer J said about the Tribunal’s reasoning in MZZZA cannot reasonably be said about the Tribunal’s reasoning in the case before me. Unlike what Mortimer J held the Tribunal in MZZZA did, the Tribunal in the case before me did not consider whether, “if there was a risk of harm less than serious harm, and less than a real chance of such harm occurring, it was nevertheless reasonable to expect” the applicant to relocate to Islamabad or Rawalpindi. As I have already noted, the only relevance the Tribunal attached to the risk-of-harm information was whether it showed the applicant would face a real chance of serious harm in Islamabad or Rawalpindi. It did not ask whether, in light of the applicant’s facing a risk of harm that was less than “serious harm”, it nevertheless was reasonable for him to relocate to Islamabad or Rawalpindi.
Conclusion and disposition
The applicant succeeds on his claim that the Tribunal did not consider whether, given the information the Tribunal accepted as disclosing violence to Shias, there was a risk of harm to the applicant that was less than “serious harm” and, if so, whether the risk of such harm, when considered with the other relevant matters, nevertheless rendered it reasonable for the applicant to relocate to Islamabad or Rawalpindi. The Tribunal, therefore, made a jurisdictional error.
I propose, therefore, to quash the Tribunal’s decision. I also propose to order that the Administrative Appeals Tribunal be substituted for the Tribunal as the second respondent, and that, pursuant to item 15AG of Schedule 9 to the Tribunals Amalgamation Act 2015 (Cth), the applicant’s application for review be reconsidered by the Administrative Appeals Tribunal according to law.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 3 November 2017
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