AND15 v Minister for Immigration

[2015] FCCA 2063

FEDERAL CIRCUIT COURT OF AUSTRALIA

AND15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2063

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Protection (Class XA) visa – relocation – whether the applicant found a real chance of persecution if applicant returned to particular area – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.476, 36(2)(a), 36(2)(aa), 424A(3)(a)

SZATV v Minister for Immigration and Citizenship (2007) 23 CLR 18

Applicant: AND15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1074 of 2015

Judgment of: Judge Street

Hearing date: 31 July 2015

Date of Last Submission: 31 July 2015

Delivered at: Sydney

Delivered on: 31 July 2015

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent: Mr B. Kaplan

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The name of the Second Respondent be amended to the Administrative Appeals Tribunal and the filing of any further document in this regard is dispensed with.

2. The application is dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the amount of $5800

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1074 of 2015

AND15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 13 March 2015 affirming a decision not to grant the applicant a protection visa. Although the application seeks an order under s.477, the application was filed within time and identifies the following grounds:

   1. The Tribunal error by no taking into account the applicant evidence properly that he is a Shia Muslim and belongs to TURI family which is the centre of target killing and serious discrimination in Pakistani Tribal areas.

   PARTICULARS

   Paragraph no 10 and 11 of the subject RRT decision.

   2. The Tribunal error by not putting relevant Country Report for his comments and denied National Justice.

   PARTICULRAS

   Paragraph no 15 of the subject decision of the RRT.

   3. The Tribunal error by considering the applicant's relocation issue incorrectly.

   PARTICULARS

   The tribunal failed to consider that my look, language and ethnicity will put his life into serious danger. The applicant is not educated enough and not trained to obtain any reasonable job to survive in other location.

2. The Court made orders on 28 May 2015 providing an opportunity for the applicant to amend the application or file any further affidavit evidence and submissions.  No such documents were filed by the applicant.

3. At the commencement of the hearing the applicant indicated that his son had recently gone missing and that the Taliban had recently threatened his family.  The applicant also said that he is not safe over there and that he wants to continue his life and he does not want to die.  The Court explained that this Court did not have jurisdiction to revisit the merits of the matter and was not in a position to make fresh findings of fact in relation to the applicant’s fears of persecution.  The Court explained that the jurisdiction was confined to determining whether the Tribunal had conducted the review according to law and could not make fresh findings of fact about the applicant’s fears.

4. The applicant was found to be a citizen of Pakistan, and his claim for protection was assessed against that country.  The applicant appeared before the Tribunal on 27 February 2015 to give evidence and present arguments and was assisted by an interpreter as well as being represented by his registered migration agent.  The Tribunal accepted that the applicant was a member of the [X] tribe and accepted that the applicant’s identity documents identified him by name, tribe and place of origin in such a way as to cause him to be identified throughout Pakistan as a Shia Muslim of the [X] tribe from a particular location.

5. The Tribunal carefully identified the applicant’s fears of harm and his experiences in a particular location.  It was a result of that evidence that the Tribunal accepted that the applicant, as a [X] Shia from a particular location, there was a real chance that he would face serious harm for reasons of his Shiite religion and his [X] ethnicity now or in the reasonably foreseeable future if he returns to the particular location.  The Tribunal found that the applicant faces a real chance of persecution for reasons of his Shiite religion and his [X] ethnicity if he returns to a particular location now or in the reasonably foreseeable future.

6. It was in those circumstances that the Tribunal turned to consider the issue of relocation.  The Tribunal carefully addressed the two steps consistent with the decision in SZATV v Minister for Immigration and Citizenship (2007) 23 CLR 18 by considering whether the applicant could move to a place within Pakistan where he does not have a well-founded fear of persecution and, secondly, if he could so move, whether it would be reasonable in the sense of practicable for the applicant to do so.

7. It is clear that in assessing the issue of relocation the Tribunal took into account both the applicant’s Shiite religion and his [X] ethnicity.  The Tribunal found that it did not accept there to be a real chance that the applicant will be targeted for harm for the separate or cumulative reasons of his Shiite religion or his [X] ethnicity, his imputed political opinion or his membership of particular social group or any convention reason if he returned to two specified locations now or in the reasonable foreseeable future. 

8. The Tribunal proceeded to consider the issue of whether it was reasonably practical for the applicant in the circumstances to relocate to those two specific locations and, relevantly, found that relocation to the two places is reasonably practical in the particular circumstances of the applicant and, accordingly, the Tribunal was satisfied that the applicant is not a person in respect of whom Australia has protection obligations under the Refugee Convention.  As a result of the findings in relation to relocation, the Tribunal did not accept that there was a real chance that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Pakistan.

9. It was in those circumstances the Tribunal concluded that the applicant did not satisfy the criteria under s.36(2)(a) or s.36(2)(aa) and was not a person in respect of whom Australia had a protection obligation. In relation to ground 1, I accept the first respondent’s submissions that it is clear that the Tribunal did take into account the applicant being a Shia Muslim belonging to the [X] family, and it was by reason of taking those matters into account that the Tribunal made the findings referred to above, and I accept the first respondent’s submission that there is no substance in relation to ground 1 of the application.

10. In relation to ground 2, country information falls within an exception under s.424A(3)(a) regardless of whether the alleged information might otherwise have fallen within s.424A. There is no substance in relation to ground 2. In relation to ground 3, the Tribunal correctly applied the two stage test identified above, and there is no substance in the contention that the Tribunal erred by incorrectly considering the issue of relocation. I also accept the first respondent’s submission that the Tribunal did not assess the risk of harm in the two specified places for relocation solely on the basis of the number of Shias living in Pakistan.

11. I also accept the first respondent’s submission that there was no failure by the Tribunal to take into account the applicant’s employment, experience, skills, language and family connections.  I further accept the first respondent’s submission that there was no irrelevant consideration taken into account in applying the second limb of the test identified in SZATV v The Minister for Immigration and Citizenship supra.  Accordingly, there is no jurisdictional error of a kind identified in ground 3 of the application.  The application is dismissed.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 5 August 2015