ATK15 v Minister for Immigration

[2015] FCCA 2841

FEDERAL CIRCUIT COURT OF AUSTRALIA

ATK15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2841

Catchwords:
MIGRATION – Application for judicial review of decision of Refugee Review Tribunal – whether Tribunal correctly considered and applied test in respect of relocation – whether Tribunal improperly limited consideration of risk in proposed places of relation to Convention – based harm – fair reading of Tribunal’s decision not revealing error – application dismissed.

Legislation:  
Migration Act 1958, ss.36(2)(aa), 91R

1951 Convention Relating to the Status of Refugees

SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18

MZYQU v Minister for Immigration (2012) 206 FCR 191

MZYXP v Minister for Immigration and Border Protection [2013] FCA 1352
MZZZA v Minister for Immigration and Border Protection [2015] FCA 594
NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCAFC 37
Januzi v Secretary of State for Home Department [2006] AC 46

Applicant: ATK15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: LNG 18 of 2015

Judgment of: Judge Burchardt

Hearing date: 24 August 2015

Date of Last Submission: 24 August 2015

Delivered at: Melbourne

Delivered on: 10 November 2015

REPRESENTATION

Counsel for the Applicant: Mr Barns

Solicitors for the Applicant: Wallace Wilkinson & Webster

Counsel for the First Respondent: Mr Wilson

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed. 

2. The applicant pay the first respondent’s costs. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

LNG 18 of 2015

ATK15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUBNAL

Second Respondent

REASONS FOR JUDGMENT

1. By an application filed 13 May 2015 the applicant seeks judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 8 April 2015.  The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a Protection (Class XA) visa.

2. The grounds asserted in the original application were brief but have now been amended by amended grounds of review filed 3 July 2015.  Two of the three grounds now asserted relate to the question as to whether the Tribunal misconstrued or misapplied the relevant legal test in relation to relocation.  It will be necessary to return to these grounds in more detail in due course. The third ground was expressly abandoned by counsel for the Applicant.

3. For the reasons that follow I do not think that the criticisms advanced by the applicant are made out, and it follows that the application must be dismissed.

4. The applicant’s statement setting out his claims is at Court Book (“CB”) 57-59.  He states relevantly at paragraph 22, CB 59:

   “22.  I fear I will be killed because I am Turi and Shi’a.”

   It is clear that that is the basis of his claim. Although the Applicant expressed fear of the Taliban, no particular matter was articulated to suggest that he would be at risk from the Taliban for any other reason more specific to himself.

5. The decision of the delegate is at CB 94-114.  The delegate did not accept that the applicant had performed work assisting NATO in the transport of supplies.  The delegate did however accept that the applicant was a Turi from Parachinar and was Shi’a.  The delegate accepted that if the applicant returned to the Kurram province where he had previously lived he would face serious harm at the risk of the Taliban.  The delegate also accepted that adequate state protection would not be available to him should he do so.  The delegate went on to consider the issue of relocation.

6. The delegate went on to conclude that it would be possible for the applicant to relocate to Islamabad and that he would not face a risk of serious harm should he do so. The delegate went on to consider the complementary protection regime in s.36(2)(aa) of the Migration Act 1958 (“the Act”).  And concluded that the applicant did not face such a risk.

7. The applicant’s submissions to the Tribunal prepared by his migration representative are at CB 123-138.  It should be noted that the submission proceeded on the footing that relocation was inappropriate because (at CB 131):

   “We submit that the security situation in Pakistan is such that Shia Muslims face a well-founded fear of persecution throughout Pakistan and therefore relocation is not a relevant option”

8. The submission did however also assert at CB 128:

   “We seek to reiterate that the applicant (name omitted) has no family or any other ties in other parts of Pakistan.  Nor are there any special circumstances that would place him at an advantage in relation to these other applicants, when relocation is considered.”

9. Post hearing submissions are at CB 143-146.  These were essentially concerned with the approach to be adopted to relevant country information.  It is perhaps sufficient to quote the conclusion at CB 146:

   “Based on this information, we submit that (the applicant) faces a real chance of being persecuted as a Shia Muslim due to the deteriorating security situation in Pakistan, and the rise of targeted killing of Shia Muslims throughout the country.”

The Tribunal’s Decision

1. The Tribunal set out the application and the relevant law at CB 148-150.  No criticism has been advanced of those matters.

2. At CB 150-152 the Tribunal set out consideration of the claims and evidence.  The Tribunal accepted, putting the matter shortly, that the applicant faced a real chance of serious harm at the hands of Taliban and Sunni extremists as a result of his Shi’a religious identity, his membership of the Turi tribe and his imputed anti-Taliban political opinion if he returned to his home area of Kurram Agency now or in the reasonably foreseeable future (paragraph 30, CB 152).

3. I note that the Tribunal also accepted (paragraph 25, CB 151) that the applicant had only completed schooling up to grade 3 and that this constituted limited schooling.

4. The Tribunal went on to consider the, for these purposes critical, issue of relocation at CB 152-158.  The Tribunal’s analysis of the applicant’s position as a truck driver (something the Tribunal accepted he would return to if he returned to Pakistan) is at paragraphs 51-54, CB 156-157.  It is perhaps sufficiently indicated for present purposes at paragraph 54, CB 157 where the Tribunal said:

   “Given the country information above, the applicant’s ability to drive trucks in the past throughout Pakistan without facing problems and the lack of any significant change in his circumstances or the country situation, the Tribunal does not accept that the applicant will face a real chance or risk of serious or significant harm as a truck driver, a Shia or Turi Shia Muslim truck driver throughout Pakistan.”

5. The Tribunal then went on to consider a number of matters that the applicant had raised that were personal to himself going to the reasonableness of relocation at CB 157-158.  It will be appropriate to return to these matters when dealing with the individual grounds advanced.  It is sufficient again to say the Tribunal did not accept that the matters raised by the applicant meant that it was unreasonable for him to relocate to Islamabad or Rawalpindi.

Ground 1: The Tribunal engaged in jurisdictional error by misconstruing or misapplying the relevant legal test in relation to relocation.

1. The applicant’s point about ground 1 was put with commendable economy (as were all the submissions in this case) in both written and oral submissions.  At paragraphs 6 and 7 the applicant’s written submissions assert:

   “6. The Tribunal misconstrued or misapplied the relevant legal test in relation to relocation by incorrectly importing the criteria of ‘serious harm’ under s.91R of the Migration Act 1958 into the relocation principle, which is contrary to the test formulated in SZATV v Minister for Immigration and Citizenship [2007] 233 CLR 18.

   7.    In MZYQU v Minister for Immigration [2012] 206 FCR 191 [54] Dodds-Streeton J stated; 

   While the plurality in SZATV recognised that neither s 91R nor any other provision of the Act applied to further specify the “relocation principle”, it did not state, nor is it a necessary inference, that the risk of harm in the proposed new region (of whatever level and however defined) is irrelevant in applying the principle of relocation laid down in SZATV. Conversely, neither SZATV, nor any other authority to which I was directed, holds that where the risk of harm is relevant to the reasonableness of relocation, it is restricted to a risk of serious harm within the meaning of s 91R(1)(b).”

2. It was therefore submitted that the Tribunal erred by adopting the restricted position set out at paragraph 46 of its decision where the Tribunal said:

   “On this basis, the tribunal does not accept that the applicant would face a real chance of serious harm or a real risk of significant harm as a Shia Muslim or as a Turi Shia Muslim if he were to relocate to Islamabad or Rawalpindi.”

3. The first respondent’s submissions quoted at paragraphs 15-16 two passages of the decision of the High Court in SZATV at [19] and [23]-[24] as follows: (Note- the first paragraph below is an extract from Januzi v Secretary of State for Home Department [2006] AC 46- cited with approval in the High Court’s judgment)

   “The [Convention] does not expressly address the situation…where, within the country of nationality, a person has a well-founded fear of persecution at place A, where he lived, but not at place B, where (it is said) he could reasonably be expected to relocate.  But the situation may fairly be said to be covered by the causative condition…[I]f a person is outside of the country of his nationality because he has chosen to leave that country and seek asylum in a foreign country, rather than move to a place of relocation within his own country where he could have no well-founded fear of persecution, where the protection of his country would be available to him and where he could reasonably be expected to relocate, it can properly be said that he is not outside of the country of his nationality owing to a well-founded fear of persecution for a Convention reason.” 

   “The Minister framed the issue, for a situation such as that presented by this appeal, as being whether it be reasonable, in the sense of practicable, for the appellant to relocate to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution.  This formulation does not…prevent account being taken of the presence of a subjective fear of persecution, nor does it treat the presence of a ‘safe area’ within the country of nationality as determinative of the existence of a well-founded fear of persecution. 

   …What is ‘reasonable’, in the sense of ‘practicable’, must depend upon 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.”

4. The First Respondent’s written submissions also pointed to authority suggesting that consideration of the reasonableness or otherwise of relocation is in part framed by the particular objections raised and quoted Kenny J in MZYXP v Minister for Immigration and Border Protection [2013] FCA 1352 at [61] to the effect that “it is not correct to say…that the Tribunal’s inquiry [is] as to the “objective impact of the possible relocation”;  [r]ather, the inquiry, though objective, [is] circumscribed by the case made by the appellant with respect to the relocation issue.”

5. The first respondent’s submissions did not respond directly to the applicant’s point about the decision of Dodds-Streeton J in MZYQU, but rather quoted other authority (MZZZA v Minister for Immigration and Border Protection [2015] FCA 594) to the effect that the Tribunal was required to consider whether the applicant faced a real chance of serious harm or significant harm should he relocate to Islamabad or Rawalpindi.

6. It was further submitted that, having determined that issue, the Tribunal considered whether it was reasonable in the sense of practicable for the applicant to relocate as a separate exercise. 

7. In my view, the passages earlier quoted from the decision of SZATV do require the Tribunal, in considering relocation to another place within the applicant’s country of origin, to be concerned with whether they would there face serious harm within the meaning of the Convention or significant harm within the meaning of the complementary protection regime.  This is because, as the High Court indicated in SZATV, the question is whether a person is outside their country of origin because there is nowhere in it where they do not face such risks.  Clearly, therefore, the Tribunal was required to consider that matter and did not err in doing so.

8. Insofar as the decision of Dodds-Streeton J touches upon the matter, it seems to me to touch on the ancillary issue of the reasonableness (in the sense of practicability) of relocation.  Read this way, there does not appear to be any inconsistency in the two decisions. 

9. Here the Tribunal does seem to me to have considered this aspect of the matter in the fashion indicated by MZYQU.  At paragraphs 59-60 (CB 157-158), under the heading “Reasonableness of Relocation”, in which the Tribunal was considering other matters personal to the applicant, the Tribunal asserted:

   “59.  The applicant has made reference to general violence in Islamabad, Rawalpindi and Lahore, indicating that ‘fifty percent’ of those areas are unsafe and referring to the recent attack by Taliban against students in Peshawar.  Having regard to the country information discussed with the applicant at hearing and referred to above, the tribunal does not accept that the level of general violence in the areas identified by the tribunal as potential areas of relocation would make it unreasonable for the applicant to relocate there. 

   60.  Given the applicant’s circumstances including his past experience of having worked as a truck driver throughout Pakistan for two years prior to coming to Australia, the tribunal finds that it would be reasonable to expect the applicant to relocate to another area of Pakistan, namely Islamabad or Rawalpindi.”

10. Read fairly, it does not seem to be that the Tribunal was restricting its considerations of the safety of relocation to Islamabad or Rawalpindi to the definitions contained in the Convention and the complementary criteria of protection as the applicant asserts.  Accordingly, this ground is not made out.

Ground 2: The Tribunal engaged in jurisdictional error by misconstruing or misapplying the relevant legal test in relation to relocation by failing to take into account the particular circumstances of the Appellant in determining whether it was reasonable for the appellant to be relocated to Islamabad or Rawalpindi. 

1. Once again, I do not set out the relatively extensive particulars which are in truth more in the nature of submissions.

2. The applicant’s written and oral submissions stress that the Tribunal had an obligation to consider difficulties or impediments identified by the applicant and as to how the applicant would deal with them in the proposed place of relocation.  The written submissions point out that the Tribunal accepted the applicant as a credible witness, and that he had only ever worked as a truck driver and would do so upon return to Pakistan.  The Tribunal also accepted that the applicant was not likely to earn a high wage doing so.  Paragraphs 14-16 of the written submissions assert:

   “14.    The Tribunal had before it evidence from the Appellant that he could not afford to relocate to Islamabad or Rawalpindi and that he would have to support his family because his elder brother was missing;  CB 158-159 [33], [39]. 

   15.    There was no evidence before the Tribunal to contradict the Appellant’s evidence that he could not afford to live in Islamabad or Rawalpindi; CB 156 [56].

   16.    It is submitted that the Tribunal failed to explore with the Appellant his capacity to earn a living if he relocated and the nature of his obligation to support his family; see NAIZ v Minister for Immigration (2005) FCAFC 37, [22].”

3. It was submitted that as in NAIZ, the Tribunal in this instance had failed to give consideration to the practical reality of the applicant’s circumstances.  It was submitted that the Tribunal did not engage with this matter and did not take the applicant’s personal circumstances into account.

4. The gravamen of the first respondent’s submissions is at paragraphs 28-29 of the written submissions:

   “28.  It was for the Tribunal to make findings of fact as to the applicant’s particular circumstances; which it did.  The Tribunal accepted that the applicant was likely to work as a truck driver and was unlikely to earn a high wage from that employment.  It had already referred to the existence of large Turi Shi’a communities living in those cities.  It took into account that the applicant had been able to support himself from truck driving in the past and that he was not currently supporting his extended family, who earned their living as farmers in Parachinar. 

   29.  It is clear, therefore, that the Tribunal considered whether the applicant’s concerns about his ability to afford to live in Islamabad or Rawalpindi meant that it was unreasonable for him to relocate to either city.  The Tribunal answered that question in the negative.  In so doing, the Tribunal made findings of fact that were open to it.  On the authorities, some diminution in living conditions does not mean that relocation is unreasonable.  In substance, therefore, this ground invites the Court to quarrel with the Tribunal’s factual findings and to engage in impermissible merits review.  The court should reject this ground.”

5. It is of course clear, as the first respondent submits, that in SZATV the High Court noted that the Convention was concerned with persecution in the defined sense, not with living conditions in the broader sense, and this has been further re-confirmed in MZZZA by Mortimer J at [30].

6. The question in this instance, of course, is whether the Tribunal engaged, as it was required to, with those matters that the applicant advanced as inimical to relocation.  The Tribunal’s relevant reasons are at paragraphs 55-58, CB157, where the Tribunal said:

   “55.  The applicant claimed that it would be unreasonable to expect him to relocate because he would not be able to support himself enough to live in Islamabad or Rawalpindi, he has limited Urdu-speaking work experience and that, as he does not know the whereabouts of his eldest brother, the applicant would take on the obligations of the eldest son of supporting his family who would most likely have to live with him. 

   56.  The tribunal accepts that the applicant is not likely to earn a high wage driving trucks across the country however it notes that he has been able to support himself in the past based on the employment of his own choosing and does not accept that he would be unable to live on the wage he would earn if he relocated to Islamabad or Rawalpindi. 

   57.  The applicant is unmarried and does not have any children of his own.  The applicant’s evidence is that his family continue to make their living as farmers in Parachinar and, while the tribunal accepts the applicant may wish to send money to support his family, it does not accept on the evidence before it that the applicant will be the sole supporter of his parents and younger siblings or that his entire family will have to live with him if he returns. 

   58.  While the tribunal accepts on the evidence before it that the applicant has limited education, he has been able to survive and work in Pakistan despite that limited education up until he left in 2011.  The tribunal accepts that the applicant’s first language is Pashto and that his Urdu may not be fluent, however his own evidence indicates that his Urdu is sufficient for him to have worked successfully as a truck driver transporting goods throughout Pakistan for about two years.”

1. Once again, when read fairly, it does not seem to me that the Tribunal failed properly to consider the claims advanced by the applicant.  The Tribunal made an express finding, open on the evidence before it, that it did not accept that the applicant’s family would have to live with him and he be their sole supporter.  The Tribunal also found that the applicant was a young man of resource and its finding that the applicant would be able to support himself was one that in my view was open on the materials.  I accept the submission of the first respondent that it was not necessary for there to be evidence refuting the applicant’s asserted likely impecuniosity.  The Tribunal’s process of reasoning was in my view open to it.

Ground 3

1. As earlier noted, this ground was expressly abandoned by counsel at the hearing.

Conclusion

1. Since the grounds of application are not made out, as earlier indicated, it follows that the application must be dismissed with costs.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  10 November 2015