AIE15 v Minister for Immigration
[2016] FCCA 451
•15 March 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AIE15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 451 |
| Catchwords: MIGRATION – Protection visa application – review of decision of Refugee Review Tribunal – whether the Tribunal failed to assess the prospects of harm in the reasonably foreseeable future – whether the Tribunal considered the applicant’s claim relating to violence in Pakistan cities – whether the Tribunal considered the applicant’s claim with regard to the most recent country information – whether the Tribunal acted unreasonably in considering past events – whether the Tribunal failed to consider relevant material – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.36(2) |
| Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper Ltd. [2013] SCC 34; [2013] 2 S.C.R. 458 SZSRQ v Minister for Immigration & Anor [2014] FCCA 2205 |
| Applicant: | AIE15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 881 of 2015 |
| Judgment of: | Judge Smith |
| Hearing date: | 23 February 2016 |
| Date of Last Submission: | 23 February 2016 |
| Delivered at: | Sydney |
| Delivered on: | 15 March 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr P. Reynolds |
| Solicitors for the Applicant: | Fragomen |
| Counsel for the First Respondent: | Mr B.D. Kaplan |
Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 881 of 2015
| AIE15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Pakistan who arrived in Australia on 11 February 2012 and lodged an application for a protection visa on 11 July 2012. On 9 August 2012 the delegate of the Minister decided to refuse to grant the applicant the visa and the applicant applied to the Refugee Review Tribunal for review of that decision. The Tribunal affirmed the decision of the delegate on 22 February 2013; however that decision was quashed by orders of this Court and the matter was remitted to the Tribunal: SZSRQ v Minister for Immigration & Citizenship [2014] FCCA 2205.
The Tribunal was reconstituted for the purpose of completing its review and made its decision on 23 February 2015 affirming the decision of the delegate. The applicant now seeks judicial review of the Tribunal’s second decision.
Background
The applicant claimed to be a refugee for the following reasons:
(a) he was a Shia Muslim from Pakistan;
(b) the situation in Parachinar (Kurram Agency) had deteriorated since 2007. Shia Muslims were being targeted for reason of religion;
(c) in August 2008, his cousin disappeared and his father received a telephone call demanding money for his return. The amount demanded (20 lakhs) was beyond the means of most people in the area. They were unable to make further contact and his cousin’s headless body was later found by the police with a letter on the body warning Shia Muslims against supporting police and military operations against the Taliban;
(d) his cousin’s death was reported in the local newspaper but only received a small mention because of the frequency of such killings;
(e) in December 2008, a bomb blast in Kissa Kahanni Bazaar injured another of the applicant’s cousins resulting in the loss of her left eye;
(f) the situation for Shia Muslims in the Kurram Agency and Pakistan generally had become really bad;
(g) his family owned a farm in their village. The part of the land that generated most of the income was surrounded by large mountains on the Afghanistan side of the border and these mountains were used by the Taliban to launch attacks against Shia Muslims, the police and the military. The applicant ceased work on the family farm in late 2010 because of the attacks;
(h) as a consequence of the above, the applicant left Pakistan. This led to him travelling into Afghanistan to get around road blocks of the Taliban (where he was also in danger because the Taliban in Afghanistan look for people who are fleeing Parachinar); and
(i) he could not relocate within Pakistan as he was a Shia Muslim who took part in the Ashura festival, and bore scarring indicating this fact. The Taliban check for such scars and he would easily be identified by them as a Shia Muslim. He also did not have family throughout Pakistan as his family resided in Parachinar. He did not have a support network and had limited skills. The unemployment rate was also very high.
Those claims were expanded upon at various times throughout the visa application and the application for review in both written submissions and evidence given in submissions made at hearings conducted by the delegate and the Tribunal.
The Tribunal made its decision on 23 February 2015.
The Tribunal accepted that the applicant had a real chance of serious harm in his home region of Parachinar in the Upper Kurram because he is a Shia and Pashtun; however, it was not satisfied that he would face a real chance of persecution everywhere in Pakistan and found that it was reasonable for him to relocate to another part of Pakistan, specifically in Islamabad or Rawalpindi. For those reasons the Tribunal was not satisfied that the applicant met the requirements of sub-s 36(2)(a) of the Migration Act 1958 (Cth), in other words, that he was a refugee. The Tribunal also found that, because it was reasonable for the applicant to relocate outside his home area within Pakistan, he did not meet the requirements of the complementary protection criterion in sub-s.36(2)(aa) of the Act.
Accordingly, the Tribunal affirmed the decision of the delegate to refuse to grant the applicant a protection visa.
Consideration
The applicant only pressed grounds three and four in an amended application. Ground 3 is in fact composed of four separate grounds under one heading. In respect of ground four, the applicant only pressed the third particular.
Ground 3
First particular: Failure to assess the prospects of harm in the reasonably foreseeable future
The applicant argues that, rather than assessing the possibility of him being persecuted in the reasonably foreseeable future, the Tribunal limited its consideration to the immediate future, namely, upon his return to Pakistan. He relied upon a number of matters in the Tribunal’s reasons: first, the Tribunal referred to the temporal period of his return to Pakistan in particular at [24] and [25] of its reasons without referring to “the reasonably foreseeable future”; secondly, although it did refer to the “reasonably foreseeable future” on two occasions in its reasons ([23] and [55]), it did not engage with the proper question in the balance of its reasons and the use of this term did not immunise its reasons from scrutiny; and thirdly, while the Tribunal accepted that the frequency of attacks in Pakistan was increasing, it did not deal with the significance of that fact; and finally, that it used the present tense in certain critical passages.
The applicant relies upon the decision of Allsop J (as his Honour then was) in SZGHS & Ors v Minister for Immigration & Citizenship [2007] FCA 1572 for the proposition that the Tribunal can be found to have failed properly to apply the law even when it has set out that law correctly in the template part of its reasons. That much may be accepted. However, each case must be determined on its own facts. In my view, the approach to the Tribunal’s reasons that is inherent in this ground is a nit-picking one which is inconsistent with that required upon judicial review: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at 272-273 [30]; Nzolameso v Westminster City Council [2015] UKSC 22 at [32] per Lady Hale (with whom Lord Clarke, Lord Reed, Lord Hughes and Lord Toulson agreed); Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper Ltd. [2013] SCC 34; [2013] 2 S.C.R. 458, at para.54 (LeBel, Fish, Abella, Cromwell, Karakatsanis and Wagner JJ).
Having regard to the Tribunal’s reasons as a whole with the aim of trying to ascertain what the actual reasons for the decision were, there is no doubt that the Tribunal did not limit itself to considering the immediate future.
First, contrary to the applicant’s argument, the fact that the Tribunal used the phrase “now or in the reasonably foreseeable future” on two occasions is telling. The first time it used that phrase is at [23] where it explained that it accepted that the applicant faces a real chance of persecution in his home district in Pakistan. That finding was immediately before the Tribunal set out its consideration of the issue of relocation in Pakistan. That was not part of any template that might readily be inferred was prepared by a person other than the person constituting the Tribunal for the purpose of review. Rather, it was part of the specific reasoning process critical to the outcome of the review. Further, it is difficult to imagine that, having clearly addressed itself to the correct question at one point in its reasons that it immediately went on to address a different, more limited question. For that reason, the use of the relevant phrase at [23] leads me to conclude, in the absence of some clear indication to the contrary, that the Tribunal addressed the correct question in the balance of its reasons.
That conclusion is fortified by the Tribunal’s second use of the phrase at [55] of its reasons. This time, the Tribunal used the phrase “reasonably foreseeable future” in respect of its conclusions on relocation, unarguably the critical question for the Tribunal.
Secondly, the Tribunal consistently used the future tense in an unconfined way in making its findings about what might happen to the applicant upon return to Pakistan. Unlike the Tribunal in SZGHS, it does not refer to the absence of any looming event which might suggest that its focus was too narrow.
Thirdly, contrary to the applicant’s argument, the Tribunal does deal with the suggestion that the frequency of attacks in Pakistan was increasing. At [36] of its reasons the Tribunal stated:
… The Tribunal accepts that both Islamabad and Rawalpindi are certainly not free of the violence that has plagued most areas of Pakistan, and also accepts that the frequency of the attacks does appear to be increasing at least in some parts of Pakistan. …
The Tribunal then immediately considered the size of the Shia population (some 40 million people), the proportion of overall incidence of sectarian violence in certain parts Pakistan, the lower level of incidents in the Punjab (where Islamabad and Rawalpindi are located), reports that Shias were relatively safe in Islamabad. All of those matters went to lessen the impact of what the Tribunal accepted was an increase in violence “at least in some parts of Pakistan”.
Next, the Tribunal noted that there “appears to have been a spate of such attacks in late 2014 and early 2015, primarily on mosques”. It then balanced that information against information that suggested that the frequency of the attacks prior to late 2014 and early 2015 was limited and that the most serious attack prior to that time occurred in late 2013, being an attack on a Shia mosque. This part of the Tribunal’s reasons is the subject of other complaints by the applicant. For present purposes, it establishes that the Tribunal’s finding was not simply that there was an increase in violence in Pakistan. It was far more nuanced than that, being based upon an analysis of the location, frequency, and nature of those attacks. For that reason, I reject the applicant’s argument that the Tribunal failed to assess the impact of the increase in violence in Pakistan.
The first particular in ground 3 is therefore rejected.
Second particular: Failure to consider a claim
The applicant argues that the Tribunal failed to consider his claim that there was an increase in violence in Islamabad and Rawalpindi. In particular, he argues that the Tribunal decided the risk faced by the applicant with reference to information concerning the present situation and the situation pre-2014 (i.e. a backwards analysis) without any attempt to deal with the claim concerning the future.
The applicant did claim that there was an increase in violence in Pakistan. It suffices to note that after the hearing conducted by the second Tribunal, the applicant’s lawyers sent the Tribunal an article relating to an attempted suicide attack that had occurred on the previous day (18 February 2015). That attack had taken place in the area which connects Rawalpindi to Islamabad and the report stated that it was the third attack at an Imambargah[1] in Pakistan in the previous three weeks. In their covering letter, the lawyers noted that the report “highlights the increasing and ongoing presence of sectarian attacks throughout Pakistan and that there would be nowhere in Pakistan where the Applicant would be safe from persecution”.
[1] A congregation hall used by Shia Muslims for particular purposes.
The Tribunal plainly dealt with that claim in the matter outlined at [16] and [17] above. While it accepted that there had been an increase in violence in Pakistan and noted that there had been a spate of attacks in late 2014 and early 2015, for the reasons outlined above it found that those facts did not mean that there was a real chance that the applicant would be persecuted in Islamabad or Rawalpindi. This particular is rejected.
Third particular: The Tribunal was obliged to consider the claims before it having regard to the most recent country information available to determine the applicable situation upon the applicant’s return.
There is some confusion in this particular. At one point in his submissions the applicant relied upon the decision of the Full Court of the Federal Court in Minister for Immigration & Border Protection v MZYTS (2013) 230 FCR 431; [2013] FCAFC 114 to argue that the Tribunal ought to have relied upon the most up-to-date information before it. However, he also appeared to argue that the Tribunal did take into account the relevant information but failed to analyse the consequence of that information. As developed in oral submissions, it was the second of these arguments that was pressed. However, understood in that way, the ground was no more than a restatement of the second particular in ground three and must be rejected for the same reasons.
Fourth particular: Illogicality and unreasonableness
The applicant’s argument in this respect was as follows:
(a) The Tribunal commences [36] by stating that the security situation varies in Pakistan, that it accepted that Islamabad and Rawalpindi was certainly not free of violence or threat to Shias, and that the frequency of attacks were increasing in at least some parts of Pakistan. Thus, it accepts that in areas of Pakistan there are areas where attacks were increasing in frequency. It also goes on note that there was a “spate” of attacks in 2014 and early 2014 in Islamabad and Rawalpindi;
(b) It resolves this, however, not by asking itself whether the attacks in Rawalpindi and Islamabad were increasing and what this meant in respect of the Applicant’s claims in the reasonably foreseeable future, but rather:
(i)How the extent of the attacks compare against the size of the population;
(ii)Examined the situation pre-2014;
(iii)Considered whether professionals ‘have been’ targeted in places such as Rawalpindi or Islamabad (and other matters relating to the present scenario);
(c) This is illogical or unreasonable in the requisite sense because what has happened in the past cannot gainsay accepted evidence as to what is happening in the future. It is one thing to say that the past can be indicator of the future (which is trite law), but if one accepts that the past situation is not constant and violence is on the rise, then the frequency of violence yesterday or several years ago provides no answer to the import of the increasing violence.
(Emphasis in original)
There are a number of problems with this argument. First, there is nothing illogical or irrational about considering the impact of recent events by reference to past events. For example, the fact that there has been a recent flood in a particular region may have little impact on the probability of another flood occurring if it was the only flood ever to have occurred. Secondly, as explained above, the Tribunal did consider whether the attacks in Rawalpindi and Islamabad were increasing in light of both the information that there was an increase of attacks in Pakistan in general, and the recent spate of attacks in late 2014 in early 2015. For those reasons there was no illogicality or irrationality in the Tribunal is reasons and this ground is rejected.
Ground 4: Failure to consider relevant material.
By letter dated 16 December 2014 the applicant’s lawyers made submissions to the Tribunal in support of the application for review. One of the issues addressed in those submissions was whether it was reasonable for the applicant to relocate to another part of Pakistan where there was no appreciable risk of the occurrence of the feared persecution. In respect of that issue, the submissions included the following extract from the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Members of Religious Minorities from Pakistan dated 14 May 2012:
In the context of Pakistan, an IFA/IRA[2] will generally not be available in areas of FATA, Khyber Pakhtunkhwa, as well as Balochistan province, which are currently affected by sustained security and military counter-insurgency operations and retaliatory militant attacks. The availability of an IFA/IRA outside these areas needs to be assessed individually, on the basis of the framework detailed in these Guidelines. Areas considered relatively stable may, nevertheless, be inaccessible in instances where access roads to and from such areas are considered insecure.
Given the wide geographic reach of some armed militant groups, a viable IFA/IRA will generally not be available to individuals at risk of being targeted by such groups. The operational capacity of certain militant groups, such as the Lashkar-e-Jhangvi and Sipah-e-Sahaba Pakistan, extends far beyond FATA or the Khyber Pakhtunkhwa province as evidenced by high-profile attacks, such as suicide bombings, countrywide, particularly in urban centres.
(Emphasis added)
[2] Internal Flight or Relocation Alternative.
The applicant argued that the Tribunal overlooked this material and thereby fell into jurisdictional error. He argued that the fact that the Tribunal did not consider this material could be inferred from the fact that it outlined the country information before it in great detail (at [31]-[34]), but it did not refer to, or consider, the above paragraph from the UNHCR Guideline. He relied upon the decision of Jagot J in SZSSY v Minister for Immigration & Border Protection [2014] FCA 1144 which, he argued, was indistinguishable from the facts of this case. While it is true that that case involved precisely the same extract from the UNHCR report as this case, the facts were otherwise different.
An important aspect of her Honour’s reasons in SZSSY was that the applicant’s written submissions referred expressly to the risk factors referred to in the second paragraph of the extract from the UNHCR report (emphasised above). The risk factors in question were specific to the appellant in that case and included circumstances relating to his uncle, threats resulting from an incident involving his uncle and the fact that the appellant was being followed in Peshawar; SZSSY at [62]. Here however, there were no such risk factors. The Tribunal found that the applicant was not at risk of being individually targeted by any extremist group. In light of that, the extract from the UNHCR report was not so material to the Tribunal’s reasons in this case as it was in SZSSY. There are two consequences of that: first, it is less likely that a failure to mention the report would support an inference that the Tribunal had overlooked it. Secondly, even if it had overlooked the report, that would not constitute jurisdictional error: Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [112].
In any event, I am not satisfied that the Tribunal failed to have regard to the UNHCR report. At [35] the Tribunal stated not only that it had considered the applicant submissions in respect of relocation but that it has “carefully considered” those submissions. Counsel for the applicant argued that the following sentence undermines the force of that statement because the part of the UNHCR guidelines referred to there was in fact in a different part of the submissions. I disagree. While it is correct to say that the part of the guidelines referred to in [35] of the Tribunal’s reasons was in a different section of the applicant’s submissions, it was clearly relevant to the question of relocation. This shows that the Tribunal was not restricting itself artificially by reference to the headings contained in the submissions but rather paying, as it said it had, close attention to them.
Further, and critically, in the same paragraph, the Tribunal referred to information that was, if not identical, then very close to the information in the UNHCR extract namely:
… The Tribunal also accepts that there remains a risk of harm for Shias throughout Pakistan, including in cities such as Islamabad and Rawalpindi and there is evidence indicating that the Taleban, Lashkar-e-Jhangvi and other extremist groups have based themselves not only in the Northwestern (sic) areas but also in large urban areas.
For that reason, this ground is rejected.
Conclusion
There is no jurisdictional error in the Tribunal’s decision. The application must be dismissed.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 15 March 2016
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
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