Alp20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 333
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ALP20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 333
File number(s): SYG 234 of 2020 Judgment of: JUDGE HUMPHREYS Date of judgment: 10 May 2022 Catchwords: MIGRATION – Administrative Appeals Tribunal – Protection visa – Whether the Tribunal erred jurisdiction only in its assessment of the criterion (refugee criterion) for a Protection visa in s 36(2)(a) of the Migration Act 1958 (Cth) (“the Act”) – Whether the Tribunal erred jurisdictionally in its assessment of the criterion (complimentary protection criterion) for a protection visa in s 36(2)(aa) of the Act, relevantly read with s36(2B)(a) of the Act – Whether the Tribunal erred jurisdictionally in its consideration of the refugee criterion and/or the complimentary protection criterion for a protection visa in
s 36(2)9a) and (aa) of the Act in that it failed to engage in a qualitative judgement as to whether the harm feared by the applicant (for which there was a real chance/risk) amounted to “serious” or “significant” harm within the meaning of the Act – Whether jurisdictional error is made out – No jurisdictional error is made out – the application is dismissed.Legislation: Migration Act 1958 (Cth) ss 5J(1)(c), s 36(2)(a) Cases cited: ALP20 v Minister for Immigration and Anor [2020] FCCA 3070
ALP20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 816
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR
CXO16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 17
DQA17 v Minister for Home Affairs [2020] FCA 864
Minister of Immigration, Local Government and Ethnic Affairs v Che Guang Xiang [1994] FCA 1259
Minister for Immigration and Border Protection vDZU16 (2018) FCAFC 32
MZACX v Minister for Immigrations and Border Protection [2016] FCA 1212
MZACZ v Minister for Immigration and Border Protection [2014] FCA 1394
MZYQU v Minister for Immigration and Citizenship (2012) 206 FCR 191
MZZJY v Minister for Immigration and Border Protection [2014] FCA 1394
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
WAAPN v Minister for Immigration and Border Protection (2015) 254 CLR 610
Division: Division 2 General Federal Law Number of paragraphs: 79 Date of last submission/s: 27 April 2022 Date of hearing: 27 April 2022 Place: Sydney Counsel for the Applicant: Mr Murphy Counsel for the Respondents: Mr Bevan ORDERS
SYG 234 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ALP20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
10 MAY 2022
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The Applicant is to pay the First Respondent’s costs fixed in the amount of $6500.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
INTRODUCTION
The applicant claims to be a citizen of Pakistan. The applicant first arrived in Australia on 26 April 2015 as the holder of a Student visa. On 9 July 2015, the applicant applied for a Protection visa. On 3 February 2016, a delegate of the Minister for Immigration (“the delegate”) refused the applicant a Protection visa.
The applicant sought merits review at the Administrative Appeals Tribunal (“the Tribunal”). In a decision dated 20 January 2020, the Tribunal affirmed the delegate’s decision not to grant the applicant a Protection visa.
The applicant sought judicial review in this Court. In a decision dated 12 November 2020, the Court, differently constituted, refused the applicant leave to amend his application to include fresh grounds of judicial review and otherwise dismissed the matter on the basis the original grounds of judicial review had no merit: (see: ALP20 v Minister for Immigration and Anor [2020] FCCA 3070).
On 30 June 2021, the Federal Court allowed an appeal against the judgement of this Court of 12 November 2020 and remitted the matter back to this Court for rehearing: (see; ALP20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 816 per Lee J).
THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION
At paragraph 6 and 7 of its decision, the Tribunal sets out the applicant’s claim in relation to protection. The applicant is a Shia Muslim from the Bangash tribe from a particular village in Parchinar. The applicant claims to have had a secret, non-intimate affair with a Sunni Muslim woman from the Mangal tribe. When the affair was discovered, the applicant claims that the respective tribes negotiated his banishment from Pakistan and that his return is likely to result in him being subject to an honour killing. The applicant also claims that he is at risk of persecution of significant harm throughout Pakistan, as an educated westernised person, a Shia and a person from the Kurram Agency.
At paragraph 12 of its decision, the Tribunal records the applicant as being married in 2013, that his wife and two children live with his parents and two younger sisters in his home village.
In relation to the relevant documentation provided at paragraph 14 of the Tribunal decision, this included a copy of a document in Urdu, with an English translation, recorded as an agreement between the applicant’s family and that of his former girlfriend, signed on 14 February 2018. The applicant also provided various reports of articles relating to family violence and honour killings and security in the Kurram Agency.
Paragraphs 20 and onwards of the Tribunal decision deal with a consideration of the applicant’s claims and credibility. At paragraph 21 of its decision, the Tribunal noted as a general observation some of the applicant’s key claims consisted of broad assertions that often lacked supporting detail or context, or appeared to sit uneasily with his own living, study and work arrangements in Pakistan. This raised some broad concerns as to his credibility.
At paragraph 21 of its decision, the Tribunal noted that the applicant had stressed that any credibility assessment needed to take into account the Pashtun culture and customary law. The Tribunal specifically acknowledged this at paragraph 23 of its decision, but noted that it was not required to uncritically accept the applicant’s claims.
Paragraphs 24 to 29 of the Tribunal decision, deal with the evidence as it relates to the applicant’s affair with a girl from another tribe. The Tribunal noted country information that indicated that the Mangal tribe, being the tribe of the place that the girl was from, is Sunni by religion and have long standing feuds with other tribes, in particular Shia Turi.
The love affair apparently commenced some time prior to 2007. It took place over some months when the applicant was about 15 years of age. Following sectarian violence in Parchinar in 2007 the girl and her family were evacuated from the applicant’s home village and settled in Peshawar. The relationship apparently continued until 2013 when the applicant married. The nature and form of the relationship during that period was not the subject of any significant evidence.
Paragraph 28 of the Tribunal decision, deals with the nature and extent of the relationship. It is noted that the applicant initially stated that he and the girl only managed to talk to each other directly once for 5-6 minutes. The applicant believed that it was a genuine relationship and not a passing contact or infatuation. The applicant stated that he does currently not know the whereabouts of the girl, other than that she was likely to return to Parachinar at some time in the future.
At paragraph 29 of its decision, the Tribunal noted that it had significant doubts about the applicant’s claims and was not prepared to accept them at face value. Even allowing for the cultural context, the Tribunal found the applicant’s evidence about the relationship with the girl, to be vague and disengaged. At the very least, the Tribunal considered that the applicant had exaggerated and misconstrued what may have been an initial attraction between himself and the girl.
At paragraphs 29 and 30 of its decision, the Tribunal noted that the applicant claimed that in April 2013 he told his mother about his relationship with the girl. The applicant’s mother was upset and refused to accept that he was in a relationship with a Sunni girl. The applicant’s father and other family members soon found out. The family ruled out any option of the applicant marrying the girl. Instead, they arranged for the applicant to marry his current wife in August 2013. The applicant and his new wife moved to the family’s rented residence in Islamabad. The applicant confirmed that his family had arranged his marriage and he complied with his parent’s wishes. The applicant told the Tribunal that although he initially complained a bit, he said he was now happy with his marriage and family
Paragraphs 32 and onwards of the Tribunal decision, deal with the issue of pursuit by the girl’s family. The applicant originally claimed that he told the girl in approximately October 2013, about two months after his marriage, of what had happened and tried to explain his situation and persuade her that it was for the best. In February 2014, the applicant met with the girl in a café in Peshwar. They were spotted by relatives of the girl together. The girl helped the applicant escape. A few days later, a third party intermediary contacted the applicant and advised that the girl’s family had beaten her, and forced her to confess the relationship and even to reveal his address in Islamabad. The applicant was advised to leave Islamabad promptly. The applicant quickly returned to Parachinar. The applicant stated that he could not imagine working anywhere in Pakistan outside Parachinar due to the risk of extortion or other harm.
In his subsequent evidence, the applicant provided more detail which included other meetings between the couple. He restated his claim that the couple was seen by some of the girl’s cousins. At paragraph 38 of its decision, the Tribunal indicated some disquiet about these claims, such as why the applicant undertook this and other trips to Preshawar to meet the girl, when they had spoken in their home village for less than 10 minutes and when she appeared to have little independence, noting Preshawar is about 180 km from Islamabad, where the applicant was residing.
In paragraph 40 and onwards of its decision, the Tribunal noted that had significant concerns about the applicant’s claims. First, the Tribunal was not prepared to accept at face value that the applicant was in any relationship with the girl. Second, the Tribunal found several aspects of his claims to be incongruous. The applicant’s claims to be concerned as to her mental health, contrasted with the Tribunal’s view that he had not made any real efforts to inquire about her current circumstances or welfare, or to locate her through the third party intermediary.
Thirdly, the applicant’s claim that his last meeting with the girl took place on 14 February 2014, and that the girls relatives forced her to reveal the applicant’s street address is in Islamabad and that he returned to Parachinar on 22 February 2014 lacked credibility. A letter from his work in Parachinar indicated that he started working there on 2 January 2014. This suggested that the applicant had already been planning to go to Parachinar in late 2013. The Tribunal did not accept the applicant’s explanation that his work falsely stated he started work in Parachinar on 2 January 2014 so that he could claim to have just under 12 month’s work experience to bolster his prospects for being granted a skilled visa. The claim does little to assist the applicant. The Tribunal noted that if the applicant was willing to provide false and misleading documents and information to the Department to secure a skilled visa, this suggests he would have the means and motivation to do so in pursuit of a Protection visa.
At paragraph 43 of its decision, the Tribunal concluded that it did not accept the applicant met the girl on several occasions in Peshawar, that the girl’s cousins spotted them in a café, that the girl was forced to reveal the applicant’s address in Islamabad, or that he returned to Parachinar to start work in response to imminent threats from the girl’s family.
At paragraph 44 of its decision, the Tribunal did not accept, given the above concerns and its adverse view of the applicant’s credibility, that the applicant was in a relationship with the girl, being a woman from a different tribe and Shia in religion.
At paragraph 45 of its decision, the Tribunal dealt with new evidence, being a text of an agreement purportedly signed on 15 February 2018 between the applicant’s and the girl’s fathers. The agreement states that the applicant and the girl were in a secret relationship which led to a dispute and potential bloodshed between the parties. Efforts to negotiate marriage failed, due to the different religions. Arbitrators from each side negotiated that the applicant’s family would pay the girl’s family 2 million Pakistani rupees, or approximately Australia $19,500.00 and five goats. The agreement stipulates that the applicant must remain outside of Pakistan for 20 years to avoid a tribal war and bloodshed. A breach of the agreement will result in a fine of 5 million Pakistani rupees, half payable to the arbitrators.
At the hearing, the applicant said the compensation some was actually 20 million Pakistani rupees or AU$195,000.00. The applicant said he has been sending funds to his family bit by bit. The applicant was unable to substantiate that there been any payments specifically relating to the claimed agreement. The applicant said he did not mention the negotiations at his Departmental interview because he did not think that would help his case. In the Tribunal’s view, it was surprising that the applicant did not mention any ongoing contact between his and the girl’s family, even if the outcome of any talks was uncertain.
The Tribunal concluded that having rejected the applicant’s claim to have been in a relationship with the girl, and that he been subject to threats or attempted violence at the hands of a family, it followed that the Tribunal did not accept that there was subsequent efforts between the two families and tribes to negotiate a peace settlement. The Tribunal had significant concerns regarding the failure of the applicant to mention the negotiations at the Departmental interview.
Further, the Tribunal was of the view that the agreement that the applicant not returned to Pakistan for 20 years seemed odd. The applicant’s representative speculated that this formula might have reflected the parties’ knowledge the applicant was not currently residing in Pakistan. The applicant also commented that although the agreement stipulated 20 years, local tradition permitted the offended party to kill him at any time. The Tribunal was concerned that the agreement appeared contrived, to bolster the applicant’s protection claims.
Second, the agreement made reference to failed negotiations for the parties to marry. This seemed anomalous, given the applicant’s claim that neither side would even consider such a union feasible and that his parents had expressly ruled it out. Third, the Tribunal had significant concerns about the provenance of the purported text. These concerns, together with previous adverse credibility findings in relation to the applicant’s preparedness to use false information in a visa application, led the Tribunal to place no weight on the purported agreement. The Tribunal concluded that the applicant is not subject to threats of any honour killing in the wake of any relationship with the girl.
In the light of the factual finding that he did not face a well-founded fear due to any illicit relationship with a girl, the Tribunal then assessed whether or not the applicant had a well-founded fear of persecution for any other reason. The Tribunal went on at paragraphs 56 through to 73 of its decision, to assess other matters relied upon by the applicant including where he was from within Pakistan, his religion, his tribe and being an educated professional person. At paragraph 57 of its decision, the Tribunal noted the applicant had given little information about his future conduct if he returns to Pakistan. The applicant impressed on the Tribunal that he was at risk throughout the country. First, living in Parachinar was dangerous due to the girl’s family, (which the Tribunal rejected) but more generally due to the volatile security situation, along tribal and sectarian lines. The applicant claimed living elsewhere in Pakistan contained risks including:
a. Widespread discrimination including from the police against Pashtuns;
b. The targeting of Shias, particularly professionals throughout the country; and
c. The difficulty to secure permanent residency in any location outside Parachinar.
The Tribunal noted it had considered these cumulatively, taking into account recent country information, which was discussed at the hearing and in subsequent correspondence, as well as the applicant’s and his family conduct and experiences.
At paragraph 58 of its decision, the Tribunal noted it had a range of country information before it. This included reports of individual acts of violence, some of which involved Shia or Pashtun in various parts of Pakistan. Whilst this information was general in nature, the Tribunal noted that its assessment must focus on the applicant’s particular circumstances as to how they give rise to a real chance of him being subject to persecutory harm.
At paragraph 59 of its decision, the Tribunal noted that the applicant’s family’s experience, including that his family moved to Islamabad from 2011 to 2013, due to risks involved at that time in travelling from Parachinar to Peshwar or Quetta. The Tribunal accepted that the applicant and his family had returned to the home village near Parachinar. The Tribunal accepted that the applicant and his family were adversely affected by insecurity in the Kurram Agency. The Tribunal noted the Department of Foreign Affairs and Trade (“DFAT”) country information about Shia tribes across the Kurram Agency.
At paragraph 61 of its decision, the Tribunal found there was a small, but nonetheless real chance, in the reasonably foreseeable future, that the applicant could be targeted and subject to serious harm on sectarian, tribal or similar grounds in Parachinar.
The Tribunal noted that in s 5J(1)(c) of the Migration Act 1958 (Cth) (“the Act”), a person will have a well-founded fear of persecution only if the real chance of persecution relates to all areas across the country. The Tribunal noted the applicant’s profile as a professional, in his late 20s. The Tribunal was not satisfied that his academic achievements or career to date, or his past residency in Australia, would establish for him a profile in Islamabad, Lahore or one of the large cities in the Kurram Agency such that he would be at a real risk. Accordingly, the Tribunal was not satisfied the applicant was a person who met the criteria for protection under s 36(2)(a) of the Act.
Paragraph 74 and onwards of the Tribunal decision, deal with an assessment of the complimentary protection requirements. The Tribunal noted at paragraph 75 of its decision, that it found the applicant had a well-founded fear of persecution in his home area of Parrachinar and that there was a real, (albeit very small) risk that he could be subject to cruel and inhuman treatment or punishment or being killed in that area
At paragraph 77 of its decision, the Tribunal noted that it flagged the issue of relocation at the hearing and whether it was reasonable and practicable for the applicant to live in an area outside of the Kurram Agency. The Tribunal noted that the applicant had previously lived in Quetta and Islamabad. The Tribunal having rejected the claim that the girl’s relatives had confronted the applicant in Islamabad, found that he had no other material to suggest that he was unsafe at that place. The focus of the discussion at the hearing was on larger Pakistani cities, including Islamabad and Lahore. In a footnote, the Tribunal found relocation in such areas was consistent with those whose ethnic and religious profiles were similar to the applicant.
The applicant claimed that he would not be able to obtain “permanent residency” elsewhere in Pakistan related to his concern that his CNIC (which the Court presumes to be his identification documentation) always indicated his place of origin as Parachinar. In the Tribunal’s view, the designation of one’s place of origin on identity documents does not amount to any restriction on a person’s right to live elsewhere in Pakistan. At its core, the applicant’s claim appeared to be that because his CNIC indicates that he is from Parachinar, that he will be subjected to discrimination no matter where else he lives.
The Tribunal accepted that the applicant may face some mistreatment on the basis of his race, religion and place of origin, but this did not amount to serious harm in the particular circumstances the case. The Tribunal was not prepared to accept the applicant faced a real risk of significant harm in places such as Islamabad or Lahore. As a practical matter, the Tribunal accepted that the applicant may need to return to Parachinar from time to time to renew his CNIC, but this did not amount to a real risk of significant harm which lay in the applicant’s longer term residency at that place.
At paragraphs 83 to 83 of its decision, the Tribunal considered the applicant’s other personal attributes but was not of the view that these would lead him to face serious risk of significant harm. The Tribunal was satisfied that a relocation was reasonable in all the circumstances and that the applicant would not find in areas outside the Kurram Agency any real risk, or be subject to any form of harm which would be such that he would meet the requirements of
s 36(2)(aa) of the Act.
GROUNDS OF JUDICIAL REVIEW
Pursuant to orders of this Court, an Amended Application was filed on 11 October 2021 setting out the following grounds of judicial review (which have been renumbered by the Court given previous Grounds 1-3 have been abandoned):
Ground One
The Tribunal erred jurisdiction only in its assessment of the criterion (refugee criterion) for a protection visa in s 36(2)(a) of the Migration Act 1958 (the Act).
Particulars
i.There was evidence before the Tribunal that “most Shia in Pakistan face a low risk of sectarian violence” (including outside the Kurram Agency).
ii.There was also evidence before the Tribunal that the applicant had been a victim and a witness of sectarian violence outside of Kurram Agency, namely, two bombings in Quetta.
iii.In the light of the matters in (i)-(ii) above, in assessing whether the applicant met the criterion for a protection visa, the tribunal was statutorily required to consider whether the risk of sectarian violence to Shias outside of the Kurram Agency, while low, nevertheless amounted to a real risk that the applicant would suffer serious harm in all areas of Pakistan.
iv.The Tribunal failed to undertake this aspect of the statutory task or, if it did, it failed to take into account the matters raised in (i)-(iii).
Ground Two
The Tribunal erred jurisdictionally in its assessment of the criterion (complimentary protection criterion) for a protection visa in s36(2)(aa) of the Act, relevantly read with s36(2B)(a).
Particulars
i.In assessing the complimentary protection criterion for a protection visa, the Tribunal was statutorily required to consider:
a.whether, objectively, there was no appreciable risk of the occurrence of the feared harm in another part of Pakistan: and, if so
b.whether the relocation of the applicant to that part of Pakistan was reasonable, in the sense of practicable, having regard to the applicant’s particular circumstances including the risks of serious harm that might be less that a real risk and including the practical realities of relocation.
ii.The Tribunal reversed the order of (a) and (b) above, thereby eliding the two stages of the statutory inquiry.
iii.Specifically as to (a) the tribunal constructively failed to engage in this stage of the inquiry at all.
iv.Specifically as to (b), in assessing the reasonableness of relocation the Tribunal failed to assess the risk of sectarian violence
v.Not pressed.
Ground Three
The Tribunal erred jurisdictionally in its consideration of the refugee criterion and/or the complimentary protection criterion for a protection visa in s 36(2)9a) and (aa) of the Act in that it failed to engage in a qualitative judgement as to whether the harm feared by the applicant (for which there was a real chance/risk) amounted to “serious” or “significant” harm within the meaning of the Act.
Particulars
i.In assessing the refugee and complimentary protection criteria for a protection visa, the tribunal was statutorily required to consider whether the harm feared by the applicant (for which there was a real chance/risk) was “serious” or “significant” harm.
ii.In considering (i), the tribunal was required to engage in a qualitative judgement – including consideration of the degree of risk of harm and the gravity of the apprehended harm – of each of the possible types of harm advanced by the applicant or otherwise open on the evidence.
iii.The Tribunal did not engage in a qualitative judgement in respect to the risk of harm by sectarian violence.
THE APPLICANT’S SUBMISSIONS
During the course of oral submissions, Counsel for the applicant confirmed that no issue was taken by the applicant as to the primary finding by the Tribunal that he faced no risk of harm due to his relationship with the girl.
It was submitted that the Tribunal found that the applicant did not satisfy the refugee criterion because, although he faced a real chance of serious harm in the Kurram Agency, outside of that area, he did not face such a chance. It was submitted that there were two errors in that reasoning. First it equated a “low” risk with a non-real chance without analysis; and/or, second, it failed to take into account the applicant’s previous experience of sectarian violence outside the Kurram Agency.
It was submitted that the Tribunal accepted at three places that Shias outside the Kurram Agency face a “low” risk of sectarian violence, at paragraphs 63, 69, and 71 of its decision. However, the Tribunal did not then go on to consider whether that “low” risk nevertheless, was a real chance of serious harm. That analysis was required because a risk that is “unlikely” may nonetheless amount to one that is “real”. Reliance was placed on Minister of Immigration, Local Government and Ethnic Affairs v Che Guang Xiang [1994] FCA 1259 at [38] where the following was said:
A real chance of persecution may occur includes the reasonable possibility of such an occurrence but not a remote possibility which, properly may be ignored. It is not necessary to show that it is probable that persecution will occur. A well-founded fear of persecution may be grounded upon the possibility of such an occurrence. Indeed, the fear that such harm may be suffered may be well-founded even though persecution is unlikely to occur.
The Tribunal found that there was a low risk of sectarian violence within the Kurram Agency but did not assess that to be a real chance at paragraph 61 of its decision.
It was submitted that the Tribunal was similarly required to consider whether or not there was a low risk of sectarian violence outside that area which nevertheless amounted to a real risk that the applicant would suffer serious harm in all areas of Pakistan. In doing so was necessary to look at the totality of the applicant circumstances. Instead the Tribunal at paragraphs 66 to 67 of its decision, considered other risks of harm (such as employment discrimination) and then at paragraph 71 of its decision, with its repeated use of the word targeted, considered and dismissed a discrete claim it had outlined that the applicant would be at an elevated risk of violence as a high profile Shia. Not being satisfied that the applicant was such a high profile Shia, the Tribunal was statutorily required to consider whether there remained a real risk of serious harm because of the more general “low risk of sectarian violence” confronting Shias throughout all Pakistan.
Further, or in the alternative, whatever analysis the Tribunal conducted, it was flawed, because it failed to take into account that the applicant had been a victim and a witness of sectarian bombings when he lived in Quetta. Despite evidence being available, which was not challenged, that the applicant was the witness of two sectarian bombings, the Tribunal observed that they had not been the subject of serious harm amounting to persecution in either the Kurram Agency or otherwise. It referred to the applicant having studied in Quetta without incident, without making reference to the two bombings at paragraph 67 of its decision. At paragraph 77 of its decision, the Tribunal noted there was no other material to assess that the applicant or his family experienced problems in these places.
It was submitted that it was tolerably clear that the Tribunal failed to take into account the evidence of the two bombings which was simply relevant to the Tribunal’s assessment of the risk of the applicant being exposed to sectarian violence in all areas of Pakistan. The failure was material because had the Tribunal taken this evidence into account, it might realistically have concluded that the applicant faced a real chance of being exposed to such harm in the future.
In relation to ground two it was submitted that in considering relocation, a two stage enquiry was required. First, the Tribunal had to determine whether objectively there was no appreciable risk of the occurrence of the feared harm on another part of the country. Second, the Tribunal was required to determine whether the relocation to the applicant was reasonable, in the sense of being practicable having regard to the applicant’s particular circumstances: (see: DQA17 v Minister for Home Affairs [2020] FCA 864 at [109]).
It was submitted, that the issues of risk of harm, arose at both stages of the enquiry although each stage of inquiry has a different focus: (see: MZACX v Minister for Immigrations and Border Protection [2016] FCA 1212 at [35]). It was submitted that the Tribunal undertook its task in the reverse order only reaching a conclusion as to the first stage of enquiry at paragraphs 83 to 84 of its decision. This reverse approach was indicative of the error identified in MZZJY v Minister for Immigration and Border Protection [2014] FCA 1394 at [21] (“MZZJY”).
It was submitted however, that the starker error lay in the Tribunal’s constructive failure to engage in the first stage of enquiry at all. Beyond stating its findings in conclusory terms of paragraphs 83 and 84 of its decision, the Tribunal failed to consider whether the “low risk of sectarian violence” to Shias outside of the Kurram Agency amounted to a real risk of significant harm for the purposes of s 36(2B)(a) of the Act.
It is not to the point that at paragraph 81 of its decision, the Tribunal did find that other types of risk, such as employment or housing discrimination, did not amount to “significant harm”. That analysis underscores that there was no intellectual exercise undertaken with respect to “low risk of sectarian violence”. The failure was material and therefore jurisdictional
Secondly, it was submitted that the Tribunal erred in two respects in the application of the relevant principles of the second stage of the relocation enquiry. Firstly, the Tribunal overlooked that the applicant had been the victim of being witness to bomb attacks against Shias. Even if this was something less than a real risk, it was something that had to be assessed in the relocation enquiry. It was submitted that the factual setting was similar to MZZJY where the Tribunal’s error was in failing to address the personal circumstances of the applicant in addressing the question whether it was reasonable, in the sense of practicable, for the applicant to relocate to Karachi, in the face of a risk of the applicant suffering sectarian and generalised violence, however remote: (see: MZZJY at [20] – [21]).
It was submitted that the error was jurisdictional because the conclusion the reasonableness of relocation might realistically have been different in the light of the accepted fact that if he relocated, he would face discrimination and mistreatment in employment, housing and other areas of life. The applicant continued to face a risk of death or injury by sectarian violence (albeit a low risk, which would be heightened if his professional or public profile were raised), he would be living away from his family but nevertheless would be required to return to the Kurram Agency from time to time.
In relation to ground three, it was submitted that assessment of serious harm and, by analogy, significant harm requires a qualitative judgement which will depend on matters of fact and degree, including the gravity and frequency of the risk of harm. It was submitted that the Tribunal only engaged in the required qualitative judgement with respect to the risk of employment discrimination, not with respect to the risk of sectarian violence. This qualitative judgement was required as the applicant had been a witness to bombings in Quetta and the level or gravity of the harm of the risk that eventuated was high. It was submitted that the Tribunal did not consider these matters which were a central question of the statutory task such that there was jurisdictional error.
THE FIRST RESPONDENT’S SUBMISSIONS
In ground one, the challenge relies upon the Tribunal’s acceptance that “most Shia in Pakistan face a low risk of sectarian violence” at paragraph 63 and the second dot point in paragraph 69 of the Tribunal decision. It also invokes the delegate’s findings that the applicant had been caught up in sectarian violence in Quetta in June 2012 and January 2013. The applicant says the Tribunal considered employment and discrimination at paragraph 66 and 67 of its decision and had dismissed a claim based on being a “high-profile Shia”. While not perfectly clear, the applicant does not challenge these aspects of the Tribunal’s decision. Rather, it is submitted that the Tribunal should have considered whether the “low risk” amounts to a real chance. It was submitted that this does not amount to a fair reading of the Tribunal’s reasons. It was submitted that the Tribunal engaged in a careful consideration of the risk of harm the applicant faced, demonstrating a nuanced appreciation of those risks, consistently with the prospective assessment required by s 5J(1) of the Act.
The Tribunal began its consideration of whether the applicant has a well-founded fear of persecution on the basis of him being a male from Parachinar, a Shia Muslim, of the Bangash tribe and that he is a well-educated person with a professional background in IT. Importantly, the Tribunal identified that it did so by reference to country information and “the applicant’s future conduct if he would returns to Pakistan”.
It was submitted that the Tribunal;
a. Set out the applicant’s contentions as to his future conduct or risks;
b. Referred to a range of country information and properly directed itself to “focus on whether the applicant’s particular circumstances give rise to a real risk of him being subject to persecutory harm”;
c. Considered the applicant’s and his family experiences in Pakistan which “all suggest they have not been subject to serious harm (to) amount to persecution in Kurram Agency or elsewhere in Pakistan” at paragraph 59;
d. Addressed the applicant’s particular circumstances in the Kurram Agency, noting that they were a complex mix of factors which resulted in the applicant not facing a short-term risk of serious harm, but that he may face an elevated risk in the medium term… Due to the volatile nature of the area such that it found there was a “small but nonetheless real chance, in the recently foreseeable future, that the applicant could be targeted and subject to serious harm, on sectarian tribal or similar grounds in Parachinar”.
e. Considered whether this real chance “relates to all areas of the country’ at paragraph 62;
f. Accepted the applicant would be easily identified as a Pashtun or Shia from Parachinar;
g. Found that there was “no real chance of the applicant facing discrimination as a Pashtun Shia or any combination of related factors… In accommodation employment or other fields, which individually or cumulatively involves serious harm amounting to persecution’ at paragraph 67;
h. Identified that country information indicated that “most Shia face only a low risk of sectarian violence’ and noted that he was not currently a devout observer and the applicant would “face an even lower risk of being caught up in sectarian attacks against mosques and religious gatherings” at paragraph 69;
i. Rejected claims that he had a “high-profile” and therefore face an elevated risk and found based on country information that the “incidence of violent attacks against Pashtuns, Shia and/or Shia professionals is low and, at least in recent years, declining” such that he does not face a real chance of being targeted as a Pashtun, Shia, Shia professional or any combination of these factors, outside Kurram Agency (for instance in a major city such as Islamabad or Lahore): see paragraphs [70-71]. “
j. Rejected his claims, on an individual and cumulative basis.
It was submitted that the Tribunal did not err in its assessment of the refugee criterion based on the “low risk of sectarian violence”. The Tribunal recognised low risk for Shias but found that the applicant faced an even lower risk, because he was not devout, had no relevant profile that would elevate the risk and, based on country information showing the incidence of violent attacks declining, found that he did not face a “real chance”. It was submitted that there was no error in the Tribunal’s approach and it engaged in the proper statutory enquiry.
As to the alternative argument, this again does not disclose any error. The statutory enquiry that the Tribunal was required to undertake was a prospective one, this relevantly assessing the applicant’s risk of serious harm and all areas of Pakistan at the time of the Tribunal’s decision, being January 2020. The applicant’s argument assumes, but tellingly does not demonstrate, that the applicant’s witness of two incidents of sectarian violence in Quetta in June 2012 in January 2013 are probative of his risk of harm in 2020. Contrary to the applicant’s argument, the Tribunal had regard to current country information concerning the risk of harm from sectarian violence. No challenge or complaint is made about that. The examples put forward by the applicant are divorced from the context and that “overall their experiences’, were referable to experiences in “education employment and ability to live’, a passage the applicant omits which concern claims based on adverse discrimination.
Ground two alleges that the Tribunal erred in its assessment of the complimentary protection criteria. It was submitted on behalf of the applicant that the Tribunal was required to enter into a two-stage enquiry which the Tribunal wrongly omitted, that it did not ask at all whether “there was no appreciable risk of the occurrence of the feared harm in another part of Pakistan” and it failed to consider both the risk of sectarian violence and the “practical realities of the applicant’s employment prospects if he relocated”.
The applicant draws on the line of cases including MZYQU v Minister for Immigration and Citizenship (2012) 206 FCR 191 and MZACZ v Minister for Immigration and Border Protection [2014] FCA 1394. The enquiry required by s 36(2)(aa) of the Act is prospective and has three elements. It includes an assessment of the circumstances constituting “significant harm” as defined in the Act. That is relevantly s 36(2B) of the Act which provides that there is not taken to be a real risk of the Minister was satisfied would be reasonable for the applicant to relocate to an area that poses no such risk. The Authority is entitled to refer to rely upon any relevant finding made while considering the refugee criterion under s 36(2)(a) of the Act.
In Minister for Immigration and Border Protection vDZU16 (2018) FCAFC 32, the Full Court identified that the statutory question posed by s 36(2B)(a) of the Act for the Authority to address was whether it was satisfied that it would be reasonable for the applicant to relocate to an area of the country of origin where there would not be a real risk that he would suffer significant harm. Each matter turns on its individual facts.
It was submitted that the Tribunal did not deviate from the statutory question posed by
s 36(2)(a) and s36(2B)(a) of the Act . To the extent that the applicant submits that there is a mandatory “two-stage” enquiry that is not supported by the authorities. The Tribunal adopted its earlier findings as to the risk of significant harm in places such as Islamabad or Lahore. The Tribunal significantly did not accept that the applicant’s occasional return to Parachinar “gave rise to risk of lesser harm, or are in any way unreasonable or impracticable”.
The Tribunal considered the applicant’s work skills and experience in personal background and found that in “areas outside Kurram Agency (such as Islamabad and Lahore) there is “no real risk that the applicant will be subject to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intelligently inflicted upon him”: (see: paragraph 83 of the Tribunal decision).
In relation to the third ground, the applicant alleges that the Tribunal failed to engage in a qualitative judgement as to whether the claimed harm constituted serious a significant harm. In WAAPN v Minister for Immigration and Border Protection (2015) 254 CLR 610 the High Court held that the question of whether a threat to a person’s liberty involved serious harm required a qualitative judgement including an evaluation of the nature and gravity of the apprehended loss of liberty. Not every breach or apprehended breach of human rights to an applicant’s country of nationality, will constitute persecution involving serious harm.
There is no error in the Tribunal’s assessment of the risk in encountering harm in the form of sectarian violence in paragraph 68 to 72 of its decision. There was no necessary occasion to require an examination of the effects of sectarian violence, as it was not an issue that it would be harmful. The question was the risk of encountering that type of harm. The Tribunal properly addressed that statutory question.
CONSIDERATION
The Tribunal decision runs to some 87 paragraphs and 18 pages. It is both comprehensive and detailed in its consideration of the applicant’s primary and secondary claims. It draws extensively upon relevant country information to make factual findings that in the Court’s view were open to it, on a reasonable consideration of all of the evidence regarding the risks faced by the applicant if he were to return to Pakistan.
This included discrete risks if he were to return to Parachinar and a detailed assessment of the same risks in other parts of Pakistan, including the larger cities such as Islamabad and Lahore. The decision includes a number of adverse credit findings in relation to the applicant and the evidence that he presented.
In considering this matter, the Tribunal was not required to accept uncritically any and all claims made by the applicant: (see: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at [451]). Further, as the Full Federal Court has repeatedly stated, the reasons of the Tribunal are not to be scrutinised with “an eye finely attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law: (see: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46] per French, Sackville and Hely JJ). At [47] they went on to say:
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. [emphasis added]
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.
Counsel for the applicant submitted that there were two errors in the manner in which the Tribunal went about its task. Firstly, it was submitted that the Tribunal did not sufficiently interrogate the risk of sectarian violence. Second, nowhere did the Tribunal engage with evidence that was before it, that the applicant had been exposed to sectarian violence as a result of being a witness to two bombings. It was submitted that this evidence had been overlooked and as a result, there was a jurisdictional error.
As noted by Counsel for the first respondent, the applicant in his post hearing submission emphasised that he did not believe he would be free from persecution in any part of Pakistan. In terms of sectarian violence, the relevant country information, which was tendered to the Court at paragraph [3.104] reads as follows:
Overall, DFAT assess that most Shia in Pakistan face a low risk of sectarian violence. This risk can vary depending on geographic location and for members of specific groups (see Hazaras and Turis). High profile Shias face a moderate risk of violence, as they are more likely to be targeted.
In the definition section of the relevant country information, the low risk is defined as “DFAT is aware of incidents but has insufficient evidence to conclude that they form a pattern”.
The fact that the Tribunal did not specifically refer to the fact that the applicant had been a witness to two bombings in 2012 and 2013 does not mean that it was not taken into account. The issue for the Tribunal was the prospective risk of harm in 2020, based on relevant country information not a risk of harm based on retrospective information. The Tribunal quite properly accepted that the applicant would be at risk if he were to return to Parachinar. At paragraph 69 of its decision, the Tribunal specifically noted that Shia Muslims face security risks from extremist groups although most only face a low risk of sectarian violence. The Tribunal then went on to note that as the applicant was not currently a devout observer, he would face even a lower risk of being caught up in sectarian attacks against mosques and religious gatherings. At paragraph 70 of its decision, the Tribunal noted that the applicant’s personal characteristics of being in his late 20s and having IT qualifications and some experiences a computer engineer in Pakistan or Australia would not establish for him a profile in Islamabad, Lahore or one of the other large cities in the Pakistan, such that he would be targeted.
At paragraph 71 of its decision, the Tribunal concluded on the material as a whole, and particularly taking into account the applicant’s past experience and profile, that he did not face a real chance of being targeted as a Pashtun, Shia, Shia professional or any combination of these factors outside the Kurram Agency.
The Court is satisfied that the failure to explicitly refer to the applicant being a witness to two bombings in 2012 and 2013 was not necessary. Based on the country information before it, and the personal characteristics of the applicant, the Tribunal properly assessed that he was not at real risk of serious harm. This was a finding that was open to it, based on the evidence that was before it. As indicated above, it is not necessary to explicitly refer to every piece of evidence that was before the Tribunal. Ground one has no merit.
Ground two consists of an allegation that the Tribunal failed to conduct its properly statutory task in relation to complimentary protection. The applicant submits that a two stage inquiry is required. The Court is satisfied that such a procedure is not required in every case. Each case will turn on its particular facts: (see: CXO16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 17 at [44]). The Tribunal considered its earlier findings in relation to refugee protection, including that the applicant would not be safe in the long-term if he was to return and remain in Parachinar. The applicant’s occasional return, was found not to be unreasonable or impracticable at paragraph 79 of its decision.
The Tribunal then went on to conduct an orthodox and unremarkable examination as to whether or not he would be at real risk in areas outside the Kurram Agency. It considered the applicant’s personal circumstances and profile but concluded, quite properly, that he was not at risk of any form of serious harm. It was therefore not unreasonable for the applicant to relocate. The Court notes at this point that the applicant previously lived in areas other than Parachinar, such as Islamabad.
In the Courts view, this examination implicitly included the consideration of the “low risk of sectarian violence” which the applicant claims needed to be specifically considered. This had already been properly and adequately considered in the Tribunal’s consideration of his risk in its consideration under the refugee criteria. The Tribunal was quite properly entitled to rely on its previous findings in this regard. Further, as stated above, there was no need for the Tribunal to refer to each piece of evidence, as the Tribunal had made a generalised finding that it is not at risk of serious harm outside of Parachinar. Ground two has no merit
Ground three alleges that the Tribunal failed to engage in a quality of judgement as to whether the claimed harm constituted serious or significant harm. The Court rejects the assertion that there was any jurisdictional error by the Tribunal by not examining in detail the effects of sectarian violence. The Court agrees with the first respondent that the relevant question was the risk of encountering that type of harm. It found that there was not a real risk. There was therefore no requirement is for it to examine in detail what the impact sectarian violence might be to the applicant. Such violence would of course be harmful. To examine specific type of harm was unnecessary.
The Court is satisfied that the Tribunal properly addressed the statutory question required of it. The Tribunal found that the applicant was not at risk and specifically found that the risk was lessened in the case of the applicant because he was not a devout Muslim who might otherwise be exposed to a higher risk of violence by regular attendance at mosques and other religious activities. Ground three has no merit
CONCLUSION
Accordingly, the application is dismissed.
I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 10 May 2022
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