AHX15 v Minister for Immigration
[2015] FCCA 1312
•15 May 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AHX15 v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1312 |
| Catchwords: MIGRATION – Refugee Review Tribunal – Protection (class XA) visa – whether the Tribunal failed to consider an integer of the applicant’s claim – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 ss.36(2)(a), 36(2)(aa), 411, 414, 420, 476 |
| Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 SZATV v Minister for Immigration and Citizenship & Anor (2007) 233 CLR 18 |
| Applicant: | AHX15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 860 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 15 May 2015 |
| Date of Last Submission: | 15 May 2015 |
| Delivered at: | Sydney |
| Delivered on: | 15 May 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr R. Clark |
| Solicitors for the Applicant: | Fragomen |
| Solicitors for the Respondents: | Mr A. Markus Australian Government Solicitor |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $5300.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 860 of 2015
| AHX15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for constitutional relief within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal made on 25 February 2015 affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa.
The application identifies the following grounds:
1. The Tribunal engaged in jurisdictional error by failing to deal with a component integer of the applicant’s claim, by failing to deal with a submission put by the applicant, and by failing to apply the correct law.
Particulars
a. A component integer of the applicant’s claim, or alternatively a submission advanced by the applicant, was that:
i his foot had been amputated in the past because the treating doctor was a Sunni and gave him a letter standard of care in respect of his treatment; and
ii. were he to return to Pakistan, he would not receive appropriate treatment in Pakistan because he was a Shiite.
b. In dealing with whether it was reasonable in the sense of practical to expect the applicant to relocate, the Tribunal limited its inquiry in respect of medical treatment to whether the type of medical treatment required was available in Pakistan: Tribunal’s Decision at [73]. The Tribunal failed to consider what standard of care the applicant would receive because he was a Shiite.
c. In the circumstances, the Tribunal failed to deal with a component integer of the applicant’s claim or, in the alternative, a submission put by the applicant;
d. Further and in the alternative, the Tribunal accordingly failed to correctly apply the relocation test.
Annexed to the applicant’s application was a statement of claims, which included headings, relevantly:
The country to which I fear returning
I fear returning to Pakistan
Why I left that country
…
What I fear may happen to me if I return to that country and why
Under which there was included the following:
42. I also now have a permanent injury to my foot that does require me to get ongoing care. While in Australia, I have been receiving this care including that I am currently in the process of getting an artificial foot to assist me in walking. I do not believe I would be able to get the required care I need in Pakistan for my leg. I believe if I was to show my ID card in most Pakistani hospitals that they would not provide me with proper treatment as they would be able to identify me as being a Shia Muslim.
There is no issue raised by the applicant in the statement of claims as to the existence of any concern of the kind identified in para.42 as to treatment in respect of relocation to another part of Pakistan. The claim and fear identified by the applicant in para.42 was a matter that the Tribunal properly addressed as set out under a heading in its reasons, in bold with a large capitalisation, “CONSIDERATION OF CLAIMS AND EVIDENCE”.
The incident in relation to the applicant’s foot was one where the applicant had said (CB191):
In around July 2010, as I was walking out of my home I stepped on a small mine which exploded. I was taken to the hospital in [P] at first. While at this hospital I was treated by a Sunni doctor who removed my foot from the ankle down. I believe that if I had been a Sunni he would have taken greater efforts to save my foot and that I did nto get proper care as I am a Shia. After this I was sent to [PX] hospital where I remained until I recovered.
I later had found out from my uncle while recovering in the hospital that mines had been scattered around my home. When I had walked out of my home I had accidentally avoided two big mines and stepped on the smaller mine. If I had taken a different path when walking out of my home I probably would have been killed.
Around a month after this incident, I started to receive call from people who identified themselves as being from the Taliban. The Taliban demanded that I stop my carpentry business and accused me of doing work for the US Armed forces. The Taliban threatened if I did not stop my business that they would kill me. I received around three calls from these men at this time that took place over a period of around 5 months.
The reasons of the Tribunal, as a matter of structure, was such that the Tribunal identified the history of the applicant and the appearance before the Tribunal, and then set out the relevant law, including the principles relating to complementary protection, and had regard to the Ministerial Direction number 56 in accordance with s.499. The structure was then to address “CONSIDERATION OF CLAIMS AND EVIDENCE” as a bold, capital heading, which was then followed by another bold, capital heading, “FINDINGS AND REASONS”.
Under the heading “FINDINGS AND REASONS”, there were subheadings, which included an issue of “Credibility”, in respect of which the Tribunal noted:
29. …The Tribunal considers that the late provision of this claim is an example of the applicant seeking to embellish his claims, adding details that did not occur in an attempt to strengthen his claims. The Tribunal finds that the applicant did not receive threat letters from the Taleban.
Following that subheading of “Credibility” is a subheading of “Claims”, in relation to which, relevantly, the Tribunal found:
60. The Tribunal finds that is there is a real chance that the applicant would face serious harm now or in the reasonably foreseeable future if he was to return to FATA or [K], or [B] for the Convention reasons of religion, ethnicity and membership of a particular social group as a Shia Muslim from Parachinar, and as a [X/Y] tribe member. The Tribunal considers that at present the State cannot provide the level of protection which citizens are entitled to expect as discussed in MIMA v Respondents S152/2003 (2004) 222 CLR 1, in the applicant’s home area.
61. Having determined that the applicant does have genuine fears of returning to his home region, the Tribunal is required to consider whether the applicant could reasonably relocate to a separate part of Pakistan. 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. Thus, a person will be excluded from refugee status if under all the circumstances it would be reasonable, in the sense of ‘practicable’, to expect him or her to seek refuge in another part of the same country. What is ‘reasonable’ in this sense must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her 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.
62. The issue of whether it would be reasonable to expect an applicant to relocate within Pakistan only arises if the circumstances indicate that there is a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution, that is, where the feared persecution is localised rather than nation-wide. Generally speaking, it is not necessary to identify a specific place in which an applicant can relocate or live.
…
65. The applicant has submitted that there was nowhere in Pakistan where Shia Muslims could live safely. He said that there were many terrorist groups in Pakistan targeting Shia Muslims. He said that it was not possible for the Shias in Pakistan to take part in processions at Muharram because there was violence, there were bomb blasts and these things happened very often with these processions and in the Imambargahs (Shia mosques). The Tribunal noted that there had been little violence in the Muharram celebrations in 2014, and notes information that the Government had taken steps to protect Shia religious processions throughout the country.13 The Tribunal notes that the only violence of note around the Ashura festival of 2014 was a bomb blast in Quetta.
66. The Tribunal does not accept on the evidence before it that Pashtun [X] Shia Muslims outside the [K] are singled out and targeted in a way which other Shia Muslims are not in the context of the sort of attacks on Shia processions and Imambargahs.
67. … The Tribunal likewise do not accept on the evidence before the Tribunal that there is a real chance that he will be prevented from practising his religion as a Shia Muslim because of his fear of sectarian violence if he relocates to Islamabad.
71. For the reasons given above the Tribunal does not accept that, if the applicant returns to Pakistan now or in the reasonably foreseeable future and relocates to Islamabad, there is a real chance that he will be persecuted for reasons of his race ([X]), his religion (Shia), his actual or imputed political opinion in support of the Pakistan authorities and the West and against the Taliban, other Sunni extremist groups and Sunni extremist sympathisers on account of his profile as a male [B] Shia Muslim from the [K] or his profile as a Shia from the [K] who has lived in the West or specifically in Australia, or as a spy for any entity, or his membership of the following particular social groups: ‘The [B] tribe’, ‘Parachinar Shias’, ‘Young male Shi’a Muslims from [K]’, ‘Shi’a [B] from FATA’, or ‘Returnees from a Western country’, or any combination of these claims. The Tribunal finds that, if the applicant relocates to Islamabad, there will be no appreciable risk of the occurrence of the persecution which he claims to fear if he returns to Pakistan.
72. It is also necessary to address whether it is reasonable, in the sense of practicable, for the applicant to relocate to Islamabad. The applicant has stated to the fact that he has no family to rely on to assist him to resettle, no money, is illiterate, and that the injuries to his leg would continue to restrict the type of work opportunities that would be available.
73. The Tribunal noted country information that prosthetics were available in Pakistan, such as that in [R]. The applicant is already used to getting assistance with his prosthetic in different locations, he received his original prosthetic in [P] sent to him from [R]. He has more recently received a further prosthetic in Australia. The Tribunal discussed with the applicant the prosthetics industry in Pakistan, including the availability of treatment across Pakistan. The applicant’s own experience is that he needed to leave his home region and travel to [P] to receive the appropriate medical treatment, with a device sent from [R]. The Tribunal considers that the applicant will be better placed than in his home region to receive the appropriate treatment and maintenance for his prosthetic. The Tribunal does not accept that the applicant cannot receive the appropriate treatment and assistance for his injury in Pakistan generally.
74. The applicant has a prosthetic leg, arising from an injury suffered in his home region. Despite this injury, the applicant has shown himself to be a capable man who has worked in a variety of areas, including in furniture building and in retail, selling products including cosmetics. The applicant has stated that because of his leg he is required to sit down quite a bit. The Tribunal does not consider that this means that the applicant is unable or incapable of finding employment due to injury, the Tribunal considers that the applicant has been able to manage quite effectively despite this difficulty. The Tribunal notes that many large urban centres are home to mixed ethnic and religious communities and offer greater opportunities for employment, access to services and a greater degree of state protection than other areas. The applicant is a single man who has shown that he has been capable of working in a variety of fields, the Tribunal does not consider that the applicant is incapable of finding opportunities in different locations within cities like Islamabad to establish himself. The applicant has managed to shown himself capable of maintaining himself without family support, since his wife passed away in 2011, and more recently through his extended residence in Australia. The Tribunal considers that the applicant can continue to look after himself without requiring family assistance. The Tribunal considers that it is not unreasonable for him to relocate to a city like Islamabad.
…
77. For the reasons given above the Tribunal considers that it is reasonable, in the sense of practicable, having regard to all of the applicant’s circumstances, for him to relocate to Islamabad where, as the Tribunal has found above, there is, objectively, no appreciable risk of the occurrence of the persecution which he fears. The Tribunal has considered the totality of the applicant’s circumstances as a male Pashtun Shia Muslim from Parachinar in the [K] who belongs to the [X] tribe, and who will be returning to Pakistan having spent time in a Western country, namely Australia. However, even taking into account the cumulative effect of these circumstances, the Tribunal does not accept that there is a real chance that the applicant will be persecuted for one or more of the Convention reasons if he returns to Pakistan. The Tribunal does not accept on the evidence before it that the applicant has a well-founded fear of being persecuted for one or more of the Convention reasons if he returns to Pakistan now or in the reasonably foreseeable future.
The Tribunal then proceeded, as a matter of structure, to address the issue of complementary protection, and made adverse findings. Counsel for the applicant asserts that the Tribunal failed to expressly deal with what was said to be an essential integer that the applicant feared he would not be provided with proper treatment because he was a Shia Muslim.
Counsel for the applicant sought to suggest that the structure of the reasons could be further bifurcated under the heading of “Claims” in a manner so as to sever and separate the matters leading to the finding in para.60 from the matters addressed from paras.61-71, and a separation from the matters dealt with from paras.72-77. Whilst the structure of the reasons may, in some cases, be a matter that assists in identifying whether the Tribunal has overlooked a component integer of the applicant’s claims, this is not a case where, in my opinion, the Tribunal has failed to deal with the component integer in respect of the alleged fear that the applicant would not be provided with proper treatment because he was a Shia Muslim.
The finding in para.71 clearly subsumes the applicant’s fears in respect of his Shia religion, and, in that regard, his fear, because of his Shia religion, that he would not receive proper treatment. It was not necessary for the Tribunal in this case to set out in detail further reference to the applicant’s fear that he would not be provided with proper treatment because he was a Shia Muslim. Counsel for the applicant sought to argue that the structure and text of para.71, with the words “for the reasons given above”, meant that no regard could be had to what was said by the Tribunal informing para.71 with what was said in para.73.
It cannot be doubted, in light of para.73, that the Tribunal was highly alive to the issue of whether the applicant could receive proper treatment. The reference to “the appropriate treatment and maintenance for his prosthetic” is clearly a reference subsuming the issue raised by the applicant in respect of his fear. Just as the Tribunal reasons must be read as a whole, so too they must not be read with a keen eye for error, and the word “above” in the first line of para.71 does not, in my opinion, excise para.73 from the context of informing what the Tribunal has said in para.71.
I take into account what was said in the Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 at [47]:
47. The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
The compelling inference in this case, in light of both the reference earlier to the claim and in light of the content of para.73, is that this is not a case where any component integer that was overlooked by the Tribunal. I am satisfied that the findings in para.71 subsumed the claim that he would not receive proper treatment because he was a Shia Muslim. In those circumstances, there is no substance in relation to paragraph 1(a) of the grounds of the application.
Paragraph 1(b) is, in my opinion, an impermissible challenge to the findings of fact and does not identify any jurisdictional error made by the Tribunal. There is no substance in the contention that the Tribunal misunderstood or misapplied the relocation test. The Tribunal was required to have regard to the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality; see SZATV v Minister for Immigration and Citizenship & Anor (2007) 233 CLR 18 at [23]-[24]. It is clear from paras.72-77 of the Tribunal’s reasons that the Tribunal did so. The application fails to disclose a jurisdictional error. The application is dismissed.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 21 May 2015
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