AQW17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 255
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AQW17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 255
File number: MLG 309 of 2017 Judgment of: JUDGE FORBES Date of judgment: 11 April 2023 Catchwords: MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal – protection visa application – complementary protection criterion sole basis of application – where risk applicant will suffer harm if returned to home area – whether relocation to urban centres in Pakistan reasonable and practicable – whether Tribunal considered personal circumstances of applicant – whether Tribunal failed to consider claim not raised by applicant Legislation: Migration Act 1958 (Cth), s 36, 48, 65 Cases cited: AMA15 v Minister of Immigration and Border Protection [2015] FCA 1424
CAR15 v Minister for Immigration and Border Protection (2019) 272 FCR 131
CRI028 v Republic of Nauru (2018) 356 ALR 50
DQU16 v Minister for Home Affairs [2021] HCA 10
Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317
SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18
Division: Division 2 General Federal Law Number of paragraphs: 66 Date of hearing: 5 May 2022 Place: Melbourne Solicitor for the Applicant: In person Solicitor for the Respondents: Clayton Utz Counsel for the Respondents: Mr Hibbard ORDERS
MLG 309 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AQW17
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
AMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE FORBES
DATE OF ORDER:
11 April 2023
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to the ‘Minister for Immigration, Citizenship and Multicultural Affairs’.
2.The application for judicial review filed on 16 February 2017 be dismissed.
3.The Applicant pay the First Respondent’s costs fixed in the sum of $6,500.
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 FORBES
INTRODUCTION
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 30 January 2017, which affirmed a decision of a delegate of the Minister (‘the delegate’) not to grant the applicant a Protection (class XA) visa (‘the visa’).
Having heard and considered oral submissions from the applicant and written and oral submissions from the Minister, I have determined that the Tribunal’s decision is not affected by jurisdictional error.
For the following reasons I have decided that the application should be dismissed.
BACKGROUND
The applicant is a citizen of Pakistan. He is of Pashtun ethnicity and the Sunni Muslim religion. He departed Pakistan legally on 30 June 2008 via Islamabad airport and arrived in Australia on 2 July 2008 as the holder of a Class TU (subclass 572) student visa.
This is the applicant’s second application for a protection visa. He initially made an application on 27 September 2010 under s 65 of the Migration Act 1958 (‘the Act’) claiming protection under the refugee criterion of s 36(a) of the Act. On 5 July 2011 the delegate refused to grant the earlier application on the basis that the applicant was not a person in respect of whom Australia owed protection obligations.[1]
[1] Court Book (“CB”), p 232
On 22 March 2012, the Refugee Review Tribunal affirmed the delegate’s decision not to grant the applicant the visa. Subsequent appeals by the applicant to the Federal Court, the Full Court and the High Court of Australia were unsuccessful.
Given that the applicant’s earlier application was made prior to the introduction of the “complementary protection” criterion in s 36(aa) of the Act, the applicant was not precluded by s 48A from making a further visa application seeking only to invoke the complementary protection obligations under the Act[2].
[2] AMA15 v Minister of Immigration and Border Protection [2015] FCA 1424
On 9 April 2014 the applicant applied for a Protection (Class XA) (subclass 866) visa which is the subject of the current proceedings. In a covering letter to the Department the applicant’s representative stated that it was an application for a “Protection visa (Complementary)”[3].
[3] CB, p 1
In support of his application, the applicant provided the delegate with various documents and a statement expanding upon his purported claims.[4] He also subsequently provided a range of country information regarding terror incidents in Pakistan.
[4] CB, p 56
Based on his protection visa application and the statement filed with his application the applicant’s claims for protection can be summarised as follows[5]:
(a)he left Pakistan in order to obtain a good education with western values. His mother who is “convent educated” and his late father wanted him to have a western education in a Christian society;[6]
(b)his background in an army family means that he is part of a social group comprising the Pakistan army. The applicant’s late father was a major in the Pakistan army, his mother has worked as a principal in army schools and receives an army pension, he attended a military boarding school and had applied to join the army. The applicant believes that he will be seen as a friend of the army and that the Taliban and related extremists would like to provoke the army or cause fear to those in that social group by attacking someone like him;
(c)as he was brought up by his mother and father to have “western ways of thinking”[7] and because his personal Islamic views are very liberal, he is a threat to the extremist parties;
(d)the Taliban and related extremist groups hate his mother because she is a woman and because she worked for United Nations agencies and Afghan refugees. She had received calls threatening her and saying that she should stop her son from joining the military;
(e)he could be beheaded, as his mother’s only son, to teach her a lesson;
(f)if he was to return to Pakistan, he might be killed or tortured by extremist groups such as the Taliban or he may be forced to join a militant extremist group against his will;[8] and
(g)the police are corrupt and the Pakistan Government or any security force will be unable to protect him.[9]
[5] Tribunal reasons paras 15-16, CB403-404
[6] CB, p 19
[7] CB, p 22
[8] CB, p 20
[9] CB, p 23
On 14 October 2015 a delegate of the Minister refused to grant the visa as it was not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention or under the complementary criterion contained in s 36(2)(aa) of the Act. While the Minister’s delegate accepted that the applicant faced a real chance of harm in his home area the delegate found that it would be reasonable and practicable for the applicant to return to Pakistan and relocate elsewhere.
Administrative Appeals Tribunal
On 22 October 2015, the applicant lodged an electronic application with the Tribunal for merits review of the Minister’s decision.
On 26 September 2016 the Tribunal sent the applicant an email, via his migration agent, inviting him to attend a hearing on 2 November 2016. After receiving a request for postponement of the interview by the applicant[10], the Tribunal postponed the hearing to 11 November 2016.
[10] CB, p 335
The applicant appeared before the Tribunal on 11 November 2016 to give evidence and present arguments.
Subsequently on 23 November 2016, the applicant contacted the Tribunal and stated that he would like to submit further documents in support of his claims.[11] On 24 November 2016, the applicant provided the Tribunal, by email, with further country information and various newspaper articles relating to terrorism-related violence in Pakistan for 2016.
[11] CB, p 355
Tribunal decision and reasons
On 31 January 2017 the Tribunal affirmed the delegate’s decision to refuse the applicant a protection visa.[12] Based on the evidence provided by the applicant at the hearing and subsequently, the Tribunal found that the applicant would not face a real risk of suffering significant harm as a necessary and foreseeable consequence of being removed from Australia to Pakistan, and therefore found that the applicant did not satisfy the protection obligations contained in s 36(2)(aa).[13]
[12] CB, p 397
[13] CB, p 418
In its reasons, the Tribunal affirmed that it had considered the applicant’s claims only in relation to the complementary protection criterion set out in s 36(2)(aa)[14].
[14] Tribunal Reasons [2]-[12]
The Tribunal in some detail set out the various claims made by the applicant[15] and summarised the evidence given by the applicant at the hearing[16].
[15] Reasons [13]-[18]
[16] Reasons [19]-[32]
In assessing the applicant’s claims, the Tribunal noted that the applicant was born in and had lived in Nowshera in Khyber Pakhtunkwa province before travelling to Australia. The Tribunal accepted that the applicant comes from a military family background. His late father had been a major in the Pakistani army and other family members including his paternal grandfather and brother-in-law were or are in the Pakistani army. The Tribunal accepted that the applicant’s mother had been the principal of an army public school in Nowshera about 10 minutes from where they lived in an army cantonment. The Tribunal also accepted that the applicant had attended a military boarding school and that he had applied to join the army.
Relying on country information the Tribunal found that the most potent militant group in Pakistan remains the Tehreek-e-Taliban (TTP) which is separate from but ideologically aligned with the Afghan Taliban. The Tribunal noted that the TPP had carried out a number of high-profile attacks against government security forces, political rivals, civilian infrastructure and non-Sunni minorities. Reported terrorist activity had included attacks against military, naval and air force facilities in Rawalpindi, Karachi and Peshawar. Country information also revealed that the security situation varied between Pakistan’s provinces and autonomous regions with the level of violence greatest in Sindh, Balochistan and Khyber Pakhtunkwa provinces and in the Federally Administered Tribal Areas (FATA). Conflict in FATA and Khyber Pakhtunkwa province remained an important factor for internal displacement and external migration[17].
[17] Reasons [37]-[38]
The Tribunal accepted that the applicant’s moderate/liberal views were not in line with the views of the Taliban, but did not accept that he could be described as a high-profile opponent or that he had been vocal in his advocacy of his liberal and anti-Taliban views, such as to draw him to the attention of the Taliban.
The Tribunal did accept, however, that as a member of a family with past and present serving members of the military, living in an army cantonment in Nowshera, with a mother who is active in education as the principal of a co-educational army public school in Nowshera, the applicant would be imputed with the political opinion of opposition to the Taliban within his home area of Nowshera[18].
[18] Reasons [41]
The Tribunal also accepted that the return of a person from the West to an area in Pakistan with a significant Taliban presence or level of Taliban activity might come to the attention of the Taliban on their return, or that the person’s return, combined with other factors, such as the person working for an NGO or otherwise engaging in activities which the Taliban opposes, might cause the person to be targeted by the Taliban. However, the Tribunal did not accept that the applicant returning to Pakistan from Australia would, in and of itself, bring him to the adverse attention of the TTP or other extremist groups.
Having considered the applicant’s claims, the Tribunal accepted that the applicant faced a real risk of suffering significant harm at the hands of the TPP or other Sunni fundamentalist groups if he returned to his home area.
Having found the existence of a real risk, the Tribunal then considered the possibility of the applicant relocating to an urban centre outside of his home area of Nowshera or Khyber Pakhtunkhwa, such as Lahore or Islamabad, in terms of both reasonableness and practicality.
Based on the weight of recent country information (which included evidence of significantly reduced levels of violence and terrorism -related activity) the Tribunal concluded that the applicant could relocate to Lahore or Islamabad without facing a real risk of suffering significant harm.[19] The Tribunal found that there was no real chance of the applicant facing a real risk of significant harm in Lahore or Islamabad now or in the foreseeable future due to him associating with army personnel or his past army associations[20].
[19] CB, p 415 para 56
[20] Reasons [60]
Given the applicant’s educational background, work history and financial circumstances, the Tribunal found that it was practicable for him to relocate. The Tribunal was satisfied that the applicant could find accommodation and employment and otherwise establish himself in Lahore or Islamabad. It also found that the applicant has the financial means to access mental health counselling services on return to Pakistan through the private healthcare system, in the event that this is necessary.[21]
[21] CB, p 417 para 61
In its consideration of the applicant’s claim that he will not be afforded protection by the Pakistan army and that the police in Pakistan are corrupt, the Tribunal concluded that as the applicant could relocate to Lahore or Islamabad safely, he would not require the protection of the police in Pakistan or the Pakistan army.
The Tribunal concluded that the applicant would not face a real risk of suffering significant harm as a necessary and foreseeable consequence of being removed from Australia to Pakistan should he relocate to an area of Pakistan outside FATA and Khyber Pakhtunkwa province, such as Lahore or Islamabad. On that basis, the Tribunal found that the applicant did not satisfy the criterion for complementary protection in s 36(2)(aa).
Application for judicial review
On 16 February 2017 the applicant applied to this Court for judicial review of the Tribunal’s decision. The applicant identifies one ground of review which is expressed and particularised as follows:
1.The decision of the AAT is affected by jurisdictional error.
Particulars
The AAT has not properly considered the criterion in s.36(2)(aa), that is, whether there are substantial grounds for believing that as a foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that the applicant will suffer significant harm. This is especially so in the light that the decision maker has accepted a number of factors in relation to the applicant and then concluded there could be more than a remote risk that he would suffer significant harm such as abduction, being held for ransom, forcibly recruited, tortured or being killed by the UP or other Sunni fundamentalists groups if he were to return to Nowshera or another part of KP.
The error identified by Hayne J in Plaintiff M13 is that the delegate in determining what was reasonable in the sense of practicable did not consider "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. The tribunal has erred in its finding that the applicant could safely relocate to another urban centre in Pakistan, as it did not give proper consideration to the particular circumstances of the applicant and the impact it would have on him. It did not give proper consideration to the fact he has already spent nearly nine years in Australia and how that would impact on him moving to a different part of Pakistan.
The tribunal in making its decision as to whether it is reasonable for the applicant to relocate, should have taken into account linguistic differences as one of the factors it had to consider, as after all this is an inquisitorial process. How could the tribunal be satisfied in coming to its conclusion, if it has not ticked all the boxes.
The applicant also filed an affidavit in support of his application for judicial review. The affidavit annexed a copy of the Tribunal’s decision and reasons and simply reiterated the ground for review set out in the initiating application.
On 1 March 2017 the first respondent, the Minister, filed a response seeking an order that the application be dismissed. The Minister contends that the decision under review is not affected by jurisdictional error.
On 16 August 2017 a Registrar of this Court made orders to enable this matter to be prepared for trial. The Minister was directed to file a court book and written submissions and the applicant was invited to file any amended application, any supplementary court book and any written submissions. The Minister filed a court book on 30 August 2017 and submissions on 21 April 2022.
By the time the matter came on for hearing before me on 5 May 2022, the applicant had not filed any amended application, court book materials, affidavits or written submissions. The Minister filed written submissions, which were developed further by counsel at the hearing.
At the hearing before me Mr Hibbard appeared on behalf of the Minister and the applicant appeared in person.
The procedure for the hearing was carefully explained to the applicant and he confirmed that he understood the procedure and had no questions to raise about it. The applicant displayed a sound command of English and he was in possession of a copy of the court book and the Minister’s written outline of submissions and list of authorities.
Statutory framework
The criteria for a protection visa are set out in s 36 of the Act. An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). The applicant is either a person in respect of whom Australia has protection obligations under the “refugee” criterion, or on other “complementary protection” grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm. This is the so-called complementary protection criterion in s 36(2)(aa) and it was the only basis upon which the applicant’s claims could be considered in the current application.
The requirements under s 36(2)(a) and s 36(2)(aa) are different, in that the former is dealing with whether a person has a well-founded fear of persecution for a Convention reason, whereas the latter is dealing with whether a person can be “removed to a particular State without suffering identified forms of harm”[22]. It is recognised that this latter assessment involves looking at the “individual circumstances of the non-citizen and the basis on which the non-citizen claims that those circumstances give rise to the requisite degree of risk as a necessary and foreseeable consequence of removal to a receiving country”[23].
[22] DQU16 v Minister for Home Affairs [2021] HCA 10 at [18]-[19] per Kiefel CJ, Keane, Gordon, Edelman and Steward JJ
[23] DQU16 at [19]
Section 36(2B)(a) provides that, in considering whether Australia has complementary protection obligations to an applicant, “…there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that… it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm…”
In the written outline of submissions, the Minister submitted, citing relevant authority[24], that the “principle of relocation” is well-established. The Minister submitted, and I accept, that in order to find that the applicant was not entitled to complementary protection on the basis that he could reasonably be expected to relocate, the Tribunal was required to be positively satisfied of two matters, namely:
(a)first, that there was a place (or places) in Pakistan where the applicant would not face a real risk of significant harm; and
(b)secondly, that it would be reasonable in the circumstances for the applicant to relocate to that place (or one of those places).
[24] CRI028 v Republic of Nauru (2018) 356 ALR 50 at [1] (Bell J), [22]-[26] (Gordon and Edelman JJ); Minister
The test for whether there is a real risk of significant harm in a particular place is an objective one. A real risk may be substantial, in the sense that it is not “remote” or “far-fetched”. A less than 50% chance of harm occurring may nonetheless be an objectively real risk of significant harm.
As to the “reasonableness” of relocation, the test is to be equated with what is “practicable” and will depend upon the circumstances of the applicant and the impact upon that person of relocation of the place of residence within the country of nationality. The Minister submits, and I accept, that the approach to be taken by a decision-maker depends on the “issues and circumstances identified by the applicant”[25].
[25] SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 at [23]-[24] (Gummow, Hayne and
Crennan JJ). See also CRI028 v Republic of Nauru (2018) 356 ALR 50 at [26], [43]-[58] (Gordon and Edelman JJ)
My assessment as to whether the Tribunal fell into jurisdictional error in this case is framed by these principles.
Applicant’s Submissions
When asked to address the Court about the basis of his application for judicial review, the applicant stated that the Tribunal erred in concluding that relocation anywhere within Pakistan was a safe and practical option. The applicant said that he had provided the Tribunal with submissions and supporting documents which explained why he viewed relocation as being unreasonable, including country information which addressed violent incidents in major cities such as Lahore and Islamabad. The applicant submitted that his evidence had not been properly taken into account by the Tribunal when considering whether relocation is a safe alternative for him.
The applicant directed the Court to a number of pages in the court book which included various media reports of violence and terrorism related incidents. This included a report of a terrorist bombing which killed 4 people in the applicant’s home town of Nowshera[26], an attack that occurred in Quetta[27], an attack on the bakery in Nowshera[28], a list of major incidents of terrorism-related violence in Pakistan in 2016[29] and an article relating to actions in Waziristan Province[30]. The applicant conceded that all of these reports were before the Tribunal but he submitted that this evidence had not been properly taken into account.
[26] CB, p 76-77
[27] CB, p 131-132
[28] CB, p 131
[29] CB, p 356
[30] CB, p 370-371
The applicant also submitted that the Tribunal failed to consider the impact that relocation would have upon him, having regard to his specific circumstances. He stated that he “can’t fully disconnect” from his past life and previous connections if he were to live in a different city, as he is “still part of that community” and it is unreasonable for him to simply isolate himself from family.[31] The applicant stated that even if he did relocate, “I will still be coming and going back to the same place of origin and so I don’t know how that will fully change my condition”[32].
[31] Transcript, p 7
[32] Transcript, p 8
The applicant also stated that even if he did move to one of the cities “recommended by the Tribunal”, he had given evidence of violence and attacks in those cities against people of his community.
In addition, the applicant submitted that the Tribunal should have taken into account linguistic differences when considering relocation. He contended that in Lahore or Islamabad, he would be easily identified for having a different ethnicity, speaking a different language and looking different from the locals. He submitted that it would be plainly obvious that he is not from that city and “you don’t need to do a lot of research” to make that finding, perhaps inferring that the Tribunal should have undertaken that research.
Minister’s Submissions
The Minister opposed the application and said it should be dismissed. Mr Hibbard made oral submissions which developed the written submissions filed with the Court on 27 April 2022.
In substance, the Minister submitted that the application failed to disclose jurisdictional error for the following reasons:
(a)first, on a fair reading of the Tribunal’s reasons it is plain that the Tribunal did take into account the various documents and evidence upon which the applicant relied;
(b)secondly, the obligation on the Tribunal is to consider the evidence, not necessarily to adopt it;
(c)thirdly, based on the applicant’s claims on the material before it, the Tribunal accepted that the applicant faced a real risk of significant harm if he returned to his home area. That conclusion was based on factors related to his home area - particularly the strength of the TTP and other militant groups in that area, and the fact that the applicant would be returning to his family;
(d)fourthly, the risk of harm elsewhere in Pakistan is a separate question and required an assessment of the reasonableness of the applicant relocating. In undertaking that assessment, the Tribunal had regard to the level of risk presented by the TTP and other extremist groups in urban areas, as well as the applicant’s personal profile;
(e)fifthly, as to whether relocation is reasonable and practicable, the Tribunal is required to and did consider the particular issues and circumstances of the applicant, as identified by the applicant; and
(f)lastly, the Tribunal did give detailed consideration to the particular personal circumstances of the applicant, however the applicant never made any claim in relation to “linguistic differences” and there was no information before the Tribunal which suggested how any “linguistic difference” might bear on the reasonableness of relocation.
CONSIDERATION
In order to determine whether the applicant satisfies the criterion for complementary protection in s 36(2)(aa) the Tribunal’s task was to ascertain whether the applicant would face a real risk of suffering significant harm as a necessary and foreseeable consequence of being removed from Australia to Pakistan.
The Tribunal considered the applicant’s claims and accepted that he faced a real risk of suffering significant harm at the hands of the Tehreek-e-Taliban or other Sunni fundamentalist groups if he returned to his home area[33]. By reason of that finding, the Tribunal was required to consider whether it would be reasonable for the applicant to relocate to an area of Pakistan where there would not be a real risk that he would suffer significant harm[34].
[33] Reasons at [33]-[54], CB 407-413
[34] Migration Act 1958, s 36(2B)(a)
It is clear from the Tribunal’s reasons that in assessing the reasonableness of the applicant relocating to the urban centres of Lahore or Islamabad, it did have regard to the level of risk presented by the TTP and other extremist groups in urban areas, as well as the applicant’s personal profile.
The evidence and material on which the applicant relies to assert risk was all before the Tribunal and was considered by it. The material before the tribunal included the various items of country information provided by the applicant, as is apparent from its reasons at [17] and [32].
From [47]-[55] the Tribunal specifically referred to and assessed country information available to it regarding the security situation across Pakistan, including the information provided to it by the applicant himself regarding major incidents of terrorism-related violence across the country, including and in his former home areas of Nowshera and Khyber Pakhtunkhwa Province. Those paragraphs reveal a careful analysis of the matters arising from the documents and discussion between the Tribunal and the applicant regarding the list of terrorism incidents and other evidence provided by him.
The Tribunal’s conclusion at [54] that the security situation varies between Pakistan’s provinces and autonomous regions was plainly rational and open to it on the evidence. The finding that the level of violence is greater in Sindh, Balochistan and Khyber Pakhtunkhwa Provinces and in the FATA was the basis for finding that the applicant could be at more than a remote risk of significant harm if he was to return there and reside within an army cantonment. In reaching that finding the Tribunal took into account the applicant’s particular circumstances including his family links to the Pakistani military, his mother’s activities as a teacher and principal of an army public school, his moderate Muslim beliefs and liberal pro-western views likely to be regarded as oppositional to the political and religious beliefs of the TTP and other extremist groups.
It is equally plain that all the relevant country information and the applicant’s personal circumstances were properly taken into account by the Tribunal in finding at [55] that the applicant would not face a real risk of significant harm if he were to return to Pakistan but relocate to an area outside Khyber Pakhtunkhwa Province and the FATA, such as the urban centres of Lahore in Punjab Province or Islamabad in the Federal Islamabad Capital Territory.
First, the Tribunal found on the evidence that Punjab Province and the Federal Islamabad Capital Territory had large populations and had remained relatively free of sectarian and generalised violence. Based on the information on which the applicant sought to rely, there had been no civilian deaths or major terror incidents in those areas save for a single incident in March 2016.
Secondly, the Tribunal recited the various bases on which the applicant claimed he would be exposed to risk, including his family’s military links, his moderate religious and political beliefs and his status as a returnee from the West. Specifically taking all of those matters into account, the Tribunal did not accept that the applicant would face a real risk of significant harm because those urban areas offered a degree of anonymity, and even if his military background and status as a returnee from Australia became known, there was no evidence that he would be subject to discrimination or violence or that he would face a real risk of significant harm from the TTP or other extremist groups. Those findings were open to the Tribunal.
As to the reasonableness and practicability of relocation, the Tribunal noted at [56] that the applicant would be able to access either Islamabad or Lahore without having to return to Khyber Pakhtunkhwa Province.
The Tribunal also specifically turned its mind to the applicant’s personal circumstances in considering the reasonableness of relocation. The Tribunal took into account the following attributes and circumstances:
(a)the applicant was a young, healthy and reasonably well-educated and resilient young man;
(b)the applicant had been in Australia since 2008, spoke English well and is currently working;
(c)he comes from a “relatively wealthy family”;
(d)he has a paternal uncle in Islamabad and a family friend in Lahore;
(e)the applicant comes from an army family;
(f)the applicant is concerned about the risks he faces due to his links to army personnel, including that his friends and social group include serving army officers who live in guarded places;
(g)the applicant expressed no concern about his background as a Pashtun;
(h)although the applicant is not receiving any counselling or medical treatment for his asserted mental health condition, and he may suffer some stress due to the need to relocate on return to Pakistan, he has the financial means and ability to access counselling services in Pakistan in centres such as Lahore or Islamabad but should that be necessary; and
(i)he would not face a real risk of significant harm such as to require the protection of the Pakistan army or the police in Pakistan.
The Tribunal does not appear to have taken into account “linguistic differences”. However, there is no evidence that this issue was ever raised by the applicant and there was no information before the Tribunal that suggested any linguistic differences might bear on the reasonableness of relocation. Moreover, given the applicant’s evidence that he was not concerned about his background as a Pashtun, it is not a matter to which the Tribunal can be expected to have turned its mind.
I am satisfied that the Tribunal’s conclusion at [63] that the applicant would not face a real risk of suffering significant harm should he relocate to an area of Pakistan outside of Khyber Pakhtunkhwa Province, such as Islamabad or Lahore, did consider the particular circumstances of the applicant and the impact upon him of relocation.
DISPOSITION
For the reasons set out above, the applicant’s ground of review does not reveal any jurisdictional error.
It follows that the application should be dismissed.
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 11 April 2023
for Immigration and Border Protection v SZSCA (2014) 254 CLR 317 at [21]-[23] (French CJ, Hayne, Kiefel and Keane JJ); SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 at [9]-[22] (Gummow, Hayne and Crennan JJ); CAR15 v Minister for Immigration and Border Protection (2019) 272 FCR 131 at [33]
(Allsop CJ, Kenny and Snaden JJ)
0
5
0