AHK16 v Minister for Immigration

[2018] FCCA 75

FEDERAL CIRCUIT COURT OF AUSTRALIA

AHK16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 75

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – reasonableness of relocation – Applicant’s mental health – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.36(2B)(c)

Cases cited:

MZANX v Minister for Immigration and Border Protection [2017] FCA 307
MZZZA v Minister for Immigration and Border Protection [2015] FCA 594
SZATV v Minister for Immigration and Citizenship [2007] HCA 40

Applicant: AHK16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 257 of 2016

Judgment of: Judge Hartnett

Hearing date: 14 August 2017

Delivered at: Melbourne

Delivered on: 17 January 2018

REPRESENTATION

Counsel for the Applicant: Mr Gilbert

Solicitors for the Applicant: Clothier Anderson Immigration Lawyers

Counsel for the First Respondent: Mr Wood

Solicitors for the First Respondent: DLA Piper Australia

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 257 of 2016

AHK16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. Before the Court is an amended application filed by the Applicant on 24 July 2017.  The Applicant seeks judicial review of a decision of the then Refugee Review Tribunal (‘the Tribunal’) dated 22 January 2016.  The Tribunal found that the Applicant had a well-founded fear of persecution in his home area, the Swat Valley in the northwest of Pakistan.  The Tribunal, however, found that it was reasonable, for the Applicant to relocate to the city of Lahore in Pakistan.

2. The grounds of application are as follows:- 

   “1. The decision of the Tribunal was affected by jurisdictional error in that the Tribunal failed to deal with an objection which the applicant made to relocation.

   Particulars

   (a) The applicant made a clearly articulated objection to relocation on the basis of his mental health, which included a claim that his mental health condition would be exacerbated and/or would deteriorate if he were required to return to Pakistan; 

   (b) This objection included a claim that there was a stigma attached to those suffering from a mental illness, which would make relocation more difficult for the applicant;

   (c) The Tribunal accepted that the applicant was suffering from anxiety, depression and symptoms of PTDS (sic);

   (d) The Tribunal dealt with the objection on the basis of the availability of mental health services in Lahore, however failed to deal with the applicant’s individual circumstances and how relocation would affect his mental health. 

   2. The decision of the Tribunal was affected by jurisdictional error in that the Tribunal failed to deal with an objection which the applicant made to relocation.

   Particulars

   (a) The applicant made a clearly articulated objection to relocation on the basis of his concerns about generalised violence;

   (b) The Tribunal first dealt with this objection on the basis of risk of harm to the applicant personally;

   (c) The Tribunal did not deal with the objection on the secondary basis put forward namely, how the existence of generalised violence would affect him personally, particularly given his mental health condition.”

3. The Applicant has filed written submissions, which were filed on 24 July 2017 and are relied upon by the Applicant.  The Court has before it the evidence as contained in the Court Book.

4. The First Respondent seeks dismissal of the application and that the Applicant pay the First Respondent’s costs. The First Respondent relies on written submissions filed by the First Respondent on 9 August 2017. 

5. The issue for judicial review is a relatively confined one. The Tribunal’s decision turned on the issue of relocation. The Tribunal was satisfied the Applicant, who is a citizen of Pakistan, a Pashtun Sunni Muslim, faced a real chance of being harmed, if he is returned to his home area of Swat, as a consequence of his and his family’s involvement in the Pakistan’s Peoples Party and “peace committees”, and by reference to the Applicant’s fear of the Taliban, in his home area, where the Court notes, his wife and five children still reside.  However, the Tribunal was not satisfied that the Applicant would face a real chance of serious or significant harm in Lahore.  The Tribunal considered that it would be reasonable for the Applicant to relocate there.  The Applicant submits that the Tribunal failed to deal with two objections that he made.  The first was in relation to his mental health, in particular the claim that it would be exacerbated and/or would deteriorate upon his return to Pakistan, regardless of whether there were mental health services available.  The second was the Applicant’s claim to fear generalised violence in a city such as Lahore and the impact that this would have on him as an individual, even if he was not caught up in it himself.  Thus the Tribunal is said to have made a jurisdictional error by failing to consider two objections to the reasonableness of relocation.

6. Having concluded the Applicant faced a real chance of harm in his home area of Swat in Khyber Pakhtunkhwa Province, the Tribunal identified the internal relocation principle, and correctly so, in paragraph 68 of the Decision Record  relevantly as follows:-

   “…Depending upon the circumstances of the particular case, it may be reasonable for a person to relocate in the country of nationality or former habitual residence to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution, and where it is reasonable, under all the circumstances, in the sense that it is practicable, to expect him 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.”

7. There are thus two issues. The first is the “appreciable risk” issue that the Applicant would face persecution in the proposed place of relocation, and the second is whether it would be reasonable in all the circumstances, to expect the Applicant to relocate to the proposed place of relocation, the “reasonableness” issue. 

8. As submitted by the Applicant, it is well established that the Tribunal is required to consider the objections which an Applicant makes to relocation in much the same way as the Tribunal is required to deal with integers of a claim. 

Background

1. The Applicant arrived in Australia on a tourist visa on 22 June 2013.  He applied for a protection visa on 13 September 2013.  He provided a statutory declaration detailing his claims to protection.  His application was refused by a delegate of the Minister on 22 October 2014. 

2. The Applicant applied to the Tribunal for review of the delegate’s decision and attended a hearing by invitation on 25 August 2015.  The Applicant was represented throughout the Tribunal process by the Refugee and Immigration Legal Centre.  Submissions were made on behalf of the Applicant, and two medical reports were provided, one from a consultant psychiatrist, Dr Prem Chopra, and the other from a clinical psychologist, Dr Fariba Kavianpour.  Considerable information, material and evidence was before the Tribunal in respect of the application.  There were submissions, country information, statutory declarations from the Applicant and the two medical reports.

3. The Applicant put his claim as to his mental health, relevantly, in the following manner.  In his statutory declaration provided to the Tribunal and made 12 August 2015, the Applicant said in paragraph 3 therein:-

   “I’m still seeing my psychiatrist, Dr Prem Chopra regularly since I began seeing him in March 2014.  I usually see him about every six weeks.  I am currently taking 75mg of Dothiepin and 15mg of Oxazepam.  I also continue to see my clinical psychologist Dr Fabiba Kavianpour about every six weeks. I have been diagnosed with a major depressive disorder, anxiety and post traumatic stress disorder.  I fear that my levels of anxiety and depression will increase exponentially if I am put in a situation of risk in Pakistan and I do not believe any amount of medication I am able to take will help me if I have to go back to Pakistan.  I fear that I will not be able to work or even function.  As I have said, my fears for my family also leave me highly anxious and depressed on a day to day basis here in Australia.  I miss my family greatly and the fact that I have no time frame in which I might be reunited with them also causes me severe depression.”

4. The medical experts, whose opinions were before the Tribunal, were Dr Kavianpour and Dr Chopra. Both experts expressed their opinion about the risk of deterioration of the Applicant’s mental health condition, premised on the assertion that Lahore was a violent, insecure and inappropriate place for the Applicant to reside.

5. Dr Kavianpour said, relevantly, in her report dated 11 June 2015:-

   “…In my view, [the applicant] requires long-term and ongoing psychiatric treatments by specialised mental health services due to the length and severity of his illnesses.  He requires seeing his GP, and his psychologist regularly and needs to be under the care of a psychiatrist for management of his mental state and medications.  It is expected that his mental state and functioning would improve if he could establish a sense of safety and security by living in Australia where he could be protected against threats to his life.  He would be able to improve his functioning and work if his mental health issues are treated properly and on (sic) a timely manner.  In contrary, if he is returned to Pakistan, his mental state would most certainly deteriorate and impact his well-being, his functioning, and possibly put his life at risk.  This is due to the fact that the longer PTSD persists, the more severe and chronic the anxiety and depressive symptoms would become.”

6. Further Dr Kiniavour said in her earlier report of 4 February 2015 relevantly:-

   “… His PTSD symptoms have improved since he has been living in Australia and feeling safe.  However, his depressive and anxiety symptoms continuing to affect him despite all his treatments as his stress factors are ongoing and he feels totally hopeless and helpless about his situation.  He is high anxious about his safety if he is returned to Pakistan and has ongoing stress about the safety of his family back in Pakistan.  He would be able to improve his mental statement if he feels safe and certain about his life and future.”

7. Dr Chopra said similarly in his report dated 17 December 2014, relevantly:-

   “…In summary his presentation is consistent with depression with associated anxiety symptoms.

   With regards to his prognosis, it is expected that [the Applicant] would be able to improve in his level of functioning if he is allowed to remain in a position of safety.  He would benefit from the prompt resolution of his application for protection.”

8. These medical opinions were placed before the Tribunal for the purposes of submitting that the Applicant would be safe in Australia by comparison with Pakistan, where there was no place where he would be safe. 

9. This argument was continued in the submissions placed before the Tribunal on behalf of the Applicant by his migration agents and dated 17 August 2015, being submissions made approximately one week before the Tribunal hearing.  In those submissions, amongst other things, are submissions under the heading, “Submissions relating to the Applicant’s ability to relocate in Pakistan”, that including the following:-

   “…it is not practical or reasonable for the applicant to relocate within Pakistan including due to:- 

   ·His mental ill health related to his past experience of persecution and trauma in Pakistan. Forced return to the source of his fear and trauma in Pakistan to an area where he has no family support will exacerbate his mental health problems.” 

10. And, further under the heading “Submissions relating to relocation and [the Applicant’s] mental health”:-

    “The applicant… is diagnosed with a psychological disorder and is also receiving intensive counselling as part of his treatment.  He has been significantly traumatised by his past in Pakistan.  He will be terrified if returned to Pakistan and his psychological condition will further deteriorate particularly given the poor security and prevalent violence across Pakistan as is detailed in country information above and below.  There is a real chance of him suffering severe psychological harm.  Mental health services in Pakistan are limited.  He has limited family members living outside of KPK to support him.  Family connection is intensely important in Pashtun culture.  The applicant has limited work experience in Pakistan.  It is expensive to rent accommodation in other cities of Pakistan. 

    We submit that the country information indicates that, in the applicant’s personal circumstances, it would be highly unlikely that he would both be able to: access the level and quality of care with respect to his mental health condition; (especially in consideration of the fact that he is consulting with both a psychologist and a psychiatrist here in Australia) or have the financial means to maintain ongoing treatment.  Aside from this, it is submitted that the intense insecurity across Pakistan will mean that the applicant will suffer severe psychological harm and be unable to cope.”

11. Further:-

    “…The professional opinion evidence submitted demonstrates that the applicant is suffering from serious and ongoing psychological conditions and disorders that require ongoing treatment.  In the event the applicant were forced to return to Pakistan and live outside his home area, these mental health issues are relevant in the following context to whether it would be reasonable, in the sense of practicable, for the applicant to relocate elsewhere in Pakistan: 

    ·these conditions would, on their own/for reason of their presence, make it significantly harder for him to relocate and live on his own in a large city in Pakistan; 

    ·these conditions would likely worsen, causing him additional emotional stress and hardship; and 

    ·the standard and amount of treatment available to the applicant in his personal circumstances would be very limited and this would likely result in his mental health circumstances deteriorating.” 

12. Further submissions were made by the Applicant’s agent on 21 September 2015, being submissions that were made post the Tribunal hearing.  Again, the Applicant’s ability to relocate was addressed with submissions addressing the Tribunal’s comments during the course of the hearing, regarding the availability of mental health care insofar as it related to the ability of the Applicant to relocate in Pakistan.  The submissions included that:- 

    “[The Applicant] has referred to the general security situation in Pakistan and his substantial anxiety that every time he walked out the door he could be the victim of an attack.”

13. And:- 

    “As stated during the hearing by the applicant, his mental health, on its own/for reason of their presence, make it significantly harder for him to relocate and live in a large city in Pakistan.” 

14. Near the conclusion of the submissions of 21 September 2015, the Applicant’s solicitor and migration agent referred to generalised violence in Pakistan and submitted that:- 

    “We refer to the Tribunal’s comments that in terms of the applicant being a victim of generalised violence, the risk of him being harmed as a result of general violence is the same risk that the general community faces. 

    In our submission, the widespread insecurity and violence in Pakistan must be considered when assessing the relevance and reasonableness of [the applicant] relocating within Pakistan, particularly when considering his fragile mental health and his understandable concern that his mental health will significantly deteriorate even further if he was forced to try and relocate.  We note the great deal of country information provided particularly with respect to the cities of Rawalpindi or Islamabad, where the Tribunal had stated the Applicant could access to health care.” 

15. Finally, the submissions made reference to the Applicant facing difficulties as a result of the stigma attached to mental health problems in Pakistan. The submissions concluded that the information before the Tribunal, was highly supportive of a finding that it would not reasonable in the sense of practicable for the Applicant to relocate within Pakistan. 

16. Thus, the Applicant’s medical experts and his migration agent sought to make a link between the claim that the Applicant’s health would deteriorate and his claim that the situation in Pakistan was violent and insecure. The Tribunal, however, rejected that premise and the Court is satisfied it was open, on the evidence before it, for the Tribunal to do so.

The Tribunal

Violence in Lahore

1. The Tribunal said, in paragraph 84 of its Statement of Decision and Reasons (‘the Decision Record’):- 

   “84. The Tribunal has considered this information and accept[s] that there has been violence in Pakistan, including in the Punjab region. However, the Tribunal does not accept that the level of violence that has occurred demonstrates a ‘high level of threat’ as claimed, or that the country information provided and considered shows the violence to (sic) affecting most of Pakistan. DFAT in its April 2015 report on Shias in Pakistan made the assessment that: 

   4.22. Overall, levels of generalised and sectarian violence are lower in Punjab relative to the rest of Pakistan.  DFAT was told by a credible Lahore-based think-tank that the rate of homicide in the Punjab is slightly lower than the national average (seven per 100,000 people). According to a credible statistical review, sectarian violence has declined in Punjab since the 1990s.  In 2014, there were 18 sectarian attacks in Punjab and the Islamabad Capital Territory combined, resulting in 21 deaths.” 

2. In paragraph 85 of the Decision Record, the Tribunal said, relevantly:- 

   “…The Tribunal does not accept that the applicant faces a real chance of serious harm or a real risk of significant harm from the generalised, sectarian or criminal violence in the Punjab as claimed.”

3. The Tribunal noted relevant country information from DFAT which supported its conclusion. 

4. The Tribunal said further in paragraph 88 of the Decision Record the following:- 

   “The applicant’s agents have claimed that the applicant is at risk of being harmed in the violence in Lahore. This violence has been characterised as both general and sectarian in nature, though it does not detail exactly what that sectarian violence is. The articles provided and submissions made discuss generalised violence in Karachi, Islamabad and Lahore, and limited reference to actual sectarian violence against Sunni Muslims. The nature of the sectarian violence is not explored or detailed.  The Tribunal has therefore considered the risk of the applicant being harmed generally in the violence that occasionally occurs outside of KPK and in locations such as Islamabad/ Rawalpindi and Lahore.”

5. The Tribunal went on to consider the generalised violence in Lahore as set out in paragraph 90 of the Decision Record.  The Tribunal accepted there was a level of generalised violence, though it was “sporadic” and “not common”.[1]  In paragraph 91 of the Decision Record, the Tribunal noted it had considered the Applicant’s risk of harm in generalised violence.  The Tribunal said:-

   “…While the acts of violence are of concern, they are not common.  DFAT in a 2015 assessment stated about the Punjab generally that:

   4.22. Overall, levels of generalised and sectarian violence are lower in Punjab relevant to the rest of Pakistan.  DFAT was told by a credible Lahore-based think-tank that the rate of homicide in the Punjab is slightly lower than the national average (seven per 100,000 people). According to a credible statistical review, sectarian violence has declined in Punjab since the 1990s.”

   [1] Decision Record dated 22 January 2016 at paragraphs 90-91.

1. In paragraph 92 of the Decision Record, the Tribunal specifically dealt with the ‘generalised’ violence in the context also of its consideration of the ‘reasonableness’ issue and indicated that it did not accept on the evidence before it that the level of generalised violence in Lahore made it unreasonable for the Applicant to relocate to that city. 

2. Further, at paragraph 122 of the Decision Record the Tribunal referred to the decision of the Federal Court in MZZZA v Minister for Immigration and Border Protection [2015] FCA 594 in support of the proposition that “the Tribunal is not precluded from using a finding that there was a remote prospect of an applicant suffering harm as part of its grounds for deciding relocation is reasonable”.

3. In paragraph 123 of the Decision Record, the Tribunal said:-

   “The Tribunal has considered this guidance [as set out in MZZZA v Minister for Immigration and Border Protection [2015] FCA 594] in the circumstances of the applicant … Having considered the information about locations in Pakistan, and in the particular circumstances of the applicant, the Tribunal does not accept that the applicant will be harmed while establishing himself and living in a new location on return to Pakistan. The Tribunal accepts that the applicant will face challenges on return, but considers that the applicant is capable, taking into account all his circumstances as detailed above, of meeting these challenges in Pakistan.  Having considered the violence that exists, the Tribunal consider the prospect remote that he will be harmed in such violence.  The Tribunal considers that it is reasonable, in a sense practical, to the applicant to relocate in Pakistan taking into account the violence that exists.”

4. In paragraphs 128 to 133, the Tribunal sets out a separate and short discussion of the issue of complementary protection. Relevantly, at paragraph 129, the Tribunal stated:-

   “… for the reasons set out above, the Tribunal has found that relocation to another part of Pakistan as set out above is both safe and reasonable in all the circumstances of the applicant. The Tribunal finds therefore that relocation is reasonable and that therefore there is taken not to be a real risk if the applicant is removed to Pakistan.”

Reasonable and Mental Health

1. Turning to the question of the reasonableness issue, the Tribunal referred on many occasions in the Decision Record to the terms of the Applicant’s specific claims.  The Tribunal said in paragraphs 103 to 107 of the Decision Record the following:-

   “103. The Tribunal has considered the applicant’s circumstances in Lahore.  As noted above, the applicant’s agents have claimed a number of reasons, individually and cumulatively, that meant that the applicant could not reasonably relocate in Pakistan. 

   104.  The applicant and his agent have provided a convoluted set of circumstances as to why the individual and cumulative effect of factors would mean that relocation is not reasonably open to the applicant.  It was submitted that:

   it is not practical or reasonable for the applicant to relocate within Pakistan including due to:

   ·   His mental ill health related to his past experience of persecution and trauma in Pakistan. Forced return to the source of his fear and trauma in Pakistan to an area where he has no family support will exacerbate his mental heath problems.

   ·   His lack of family support outside of KPK

   ·   His lack of work experience in Pakistan

   ·   The fact that he is a Sunni Pashtun from Swat who will face discrimination and suspicion

   ·   He has no place to live elsewhere and it is expensive to reside in Pakistan cities.  His mental ill-health, issues of discrimination as a Pashtun from Swat and his very specific work will impede his employment and capacity to sustain himself.

   ·   All Pakistan cities are currently extremely insecure.  Not only does this place the applicant at risk of harm, it will also result in further psychological trauma to him.

   105. The Tribunal has considered them individually and cumulatively.

   106. The Tribunal notes that the arguments seek to argue many things, that he would not get employment because of being unskilled in a high unemployment area, no family or friends to support him and being of Pashtun ethnicity.  The submission then states that even in the event of gaining employment he would still be discriminated against as a Pashtun. Urban centres were expensive. The applicant has claimed language difficulties in Lahore as he has limited Punjab.  The applicant has also raised mental health concerns with relocating in Pakistan.

   107. The Tribunal has considered these issues…”

2. The consideration of those issues occurs in the Decision Record in some detail in the paragraphs which follow.  Of particular relevance is paragraphs 115 to 118 wherein the Tribunal said:-

   “115. The Tribunal has considered the claims (sic) claim regarding the applicant’s mental health, including that his mental health condition will be exacerbated on return to Pakistan, and that it will cause him to have difficulty in establishing himself in a new location. The Tribunal notes the psychological report of Dr Kavianpour and Dr Chopra as provided to the Tribunal and the submissions arising from these reports. The Tribunal discussed mental health services available in Pakistan at the hearing.

   116. A 9 October 2011 article from Dawn, provides the following information on mental health in Pakistan as given by the President of the Pakistan Association for Mental Health (PAMH),  Dr S. Haroon Ahmed:

   In Pakistan, there were four mental health hospitals in Hyderabad, Lahore, Peshawar and Mansehra with a total capacity of 3,000 beds, while small psychiatric units were attached to teaching hospitals and private psychiatric hospitals had a capacity of about 4,000 beds for patients reporting with mental disorders, he said.  He lamented that there were only 419 psychiatrists in the country, concentrated mostly in urban areas, while there was no trained psychiatric nurses and community mental health workers. There had been a longstanding demand for a meaningful investment in the mental health sector, development of workforce and infrastructure.

   117.  There are reports as viewed by the Tribunal that discuss positive developments in the area of mental health services in Pakistan…

   118.  The Tribunal notes there are reports of depression, anxiety and PTSD in Pakistan, and that people often resorted to medication rather than treatment, and that it appeared medication for anxiety, depression, and sleepless (sic) were readily available. The prevalence of mental health issues undermines in part the argument that stigma is attached to such illnesses.  The Tribunal considers that while the services are not of the same standard as Australia, the authorities in Pakistan are seeking to improve and provide the services that are available.  The Tribunal does not accept that the submission that there is a ‘continuing discriminatory failure to devote resources to mental health treatment. The Tribunal considers that the Pakistani authorities do provide resources as budgetary conditions allow, that the resources for health services are provided, and that mental health treatment receives some of those resources…”

3. In paragraph 119 of the Decision Record, the Tribunal critically said as follows:-

   “The Tribunal accepts that the applicant has been diagnosed with anxiety, depression and symptoms of PTSD.  The applicant gave evidence that he is taking medication for sleeplessness and depression, and that he is very anxious about returning to Pakistan. However, for the reasons provided above I do not accept that the Applicant would be harmed were he to relocate to Lahore, or another urban area outside KPK and the FATA.  The Tribunal accepts that mental health is a considerable problem in Pakistan, and that experts consider there should be more services available. However, as noted above, there are a number of mental health treatment services available in Lahore, including the Punjab Institute of Mental Health, considered a leader in treatment in Pakistan, which has an outpatient department which provides free consultation, drugs and psychotherapeutic interventions and deal with anxiety and mood disorders amongst other illnesses. Fountain House in Lahore also treats patients with mental health issues. The Tribunal accepts that mental health is a difficult issue in Pakistan, but there are several services available. The Tribunal accepts that there should be more resources devoted to mental health in Pakistan by state and federal governments, but I note that this is an issue in all countries, including Australia, and cuts across the developed and developing world. Having considered the evidence of the applicant, the reports provided by the representative and the information set out above, the Tribunal considers that there is a reasonable level of mental health services available to the applicant if he were to relocate to Lahore or another urban area, where services in general are more readily available. The Tribunal does not accept that the applicant will be denied the opportunity to avail himself of such treatments, or that he would be denied such treatments in any discriminatory manner, giving the availability of the services.”

4. The Tribunal, in paragraph 120 of the Decision Record, went on further to say, relevantly:-

   “…The availability of treatment means that the applicant will be able to manage his mental health issues while undertaking employment.  The Tribunal does not accept that the applicant’s mental health concern mean that it would be unreasonable for him to relocate in Pakistan.”

5. The Tribunal thus identified particular hospitals and services that would be available to the Applicant, with particular specialist treatment available free of charge that would mean the Applicant could manage his mental health issues and work and, having so found, concluded that it was reasonable for the Applicant to relocate. Such a finding was open to the Tribunal on the evidence before it. There was nothing about the Applicant’s particular circumstances that was not recognised by the Tribunal.

6. The principal authority relating to the internal relocation principle is SZATV v Minister for Immigration and Citizenship [2007] HCA 40 (‘SZATV’). In SZATV at paragraphs 25 to 26, the High Court held that the principle “finds its place” in the definition of “refugee” via the following process of reasoning:

   “The [Convention] does not expressly address the situation … where, within the country of nationality, a person has a well-founded fear of persecution at place A, where he lived, but not at place B, where (it is said) he could reasonably be expected to relocate. But the situation may fairly be said to be covered by the causative condition … [I]f a person is outside of the country of his nationality because he has chosen to leave that country and seek asylum in a foreign country, rather than move to a place of relocation within his own country where he could have no well-founded fear of persecution, where the protection of his country would be available to him and where he could reasonably be expected to relocate, it can properly be said that he is not outside the country of his nationality owing to a well-founded fear of persecution for a Convention reason.”

7. Accordingly, the Court held that a person does not meet the definition of a “refugee” in the Convention if “it would be reasonable, in the sense of practicable, for the [person] to relocate to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution”.[2]

   [2] SZATV v Minister for Immigration and Citizenship [2007] HCA 40, 26-27 [23]-[24]

8. In MZANX v Minister for Immigration and Border Protection [2017] FCA 307, Mortimer J referred to the relevant authorities and provided some assistance as to how an assessment of reasonable is to be conducted. Her Honour said, relevantly:-

   “49… The assessment of whether a person who has been found to have a well-founded fear of persecution in one part of her or his country of nationality, can relocate to another region or part of that country of nationality is not to be approached only by reference to the risk of harm, whether assessed under the Refugees Convention or in accordance with complementary protection obligations. 

   50. It is also to be assessed by reference to the individual circumstances of the person concerned, and what is practicable and reasonable for that person, taking into account what it is really like, to live in the place said to be safe…

   51. In any context, whether refugee law or otherwise, what is “practicable” and “reasonable” for a person to do, or not to do, involves a fact-intensive assessment.  Generalities will not suffice.  There must be a sufficiently detailed array of information about the individual concerned (and any family members) and a sufficiently detailed array of information about the putative safe location.  An assessment must then be conducted of what this particular individual is likely to face in that particular location.”

9. And further at [55]:-

   “…A broad brush approach will not satisfy the requirements of the task to be performed. In order to determine whether, as a conclusion, relocation is “practicable” and “reasonable” for a particular individual, a level of comfortable satisfaction based on probative material must be reached by the decision-maker about what will face that particular individual and how she or he will cope.

   …”

Ground One

1. The Applicant submitted that the Tribunal focussed on the general availability of services in Pakistan as opposed to dealing with the specifics of the Applicant’s objection, which was how his return to Pakistan would affect his mental health.  The Applicant submitted that the Tribunal spoke in generalised terms and took a ‘broad-brush’ approach.  

2. The Applicant submitted that the Tribunal accepted that the Applicant was suffering from anxiety, depression and had symptoms of PTSD. There was no issues as to credit. Nevertheless, the Applicant argued, the Tribunal failed to deal with the objection with sufficient particularity vis-à-vis the Applicant as an individual. The Applicant submitted an assessment of his personal circumstances was required and the impact of relocation upon him and that such a task was not undertaken by the Tribunal.

3. The Court however disagrees with these submissions and finds the Tribunal did adequately and properly deal with each and every of the Applicant’s various objections to relocation. They were identified by the Tribunal and rejected by the Tribunal on evidence which supported the Tribunal’s factual findings. The Tribunal did consider the impact on the Applicant personally of relocation and in particular with regard to his mental health needs and found the Applicant could live reasonably in Lahore with his medical needs adequately addressed by the various hospitals and universities available to him.

4. As submitted by the First Respondent, the Court finds the Tribunal clearly rejected the Applicant’s specific claim that he would suffer a “stigma” that is allegedly attached to persons suffering mental health issues in Pakistan. The Tribunal specifically noted at paragraph 118 of the Decision Record that claim was undermined by the prevalence of mental health issues and the ready availability of services in urban areas such as Lahore.

Ground Two

1. The Applicant submitted that the Tribunal dealt with the Applicant’s clearly articulated objection to relocation on the basis of his concerns about generalised violence in Pakistan, but concentrated on the level of risk which the Applicant might face in Lahore. It applied s.36(2B)(c) of the Migration Act 1958 (Cth) in finding that the risk was one faced by the population generally and not by the Applicant personally. The Applicant argued that the Tribunal did not deal with, whether the fact of generalised violence which was accepted by the Tribunal, was a matter which made the Applicant’s relocation unreasonable in his particular circumstances.

2. The difficulty with the Applicant’s argument is that the Tribunal did not accept, as a factual matter that the Applicant faced a real chance of suffering violence in Lahore. It found the prospect of the Applicant facing violence in Lahore was remote. This was relevant to the Tribunal’s satisfaction about the reasonableness of the Applicant’s relocation. Further, the Tribunal expressly referred to the Applicant’s claim of exacerbation of his mental health condition upon relocation and dealt directly with his claim that his mental health condition would deteriorate. In doing so, the Tribunal found that various services, as identified by the Tribunal, were available to the Applicant and concluded as a matter of fact that the Applicant would be able to manage both his mental health issues and employment by virtue of that fact. The Tribunal was itself particular, about addressing the particular needs of the individual Applicant.

3. The Tribunal did grapple with the claim that the Applicant’s mental health conditions meant it was unreasonable for him to relocate to Lahore, and determined it was not unreasonable and did so on the basis of the evidence before it.

4. The Tribunal found that the prospect of the Applicant facing violence in Lahore was remote.  It said that expressly in paragraph 123 of the Decision Record.  It was open to the Tribunal, to expressly so find.   

5. The application will be dismissed and costs shall follow.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  17 January 2018