BCM18 v Minister for Home Affairs
[2023] FedCFamC2G 148
Federal Circuit and Family Court of Australia
(DIVISION 2)
BCM18 v Minister for Home Affairs [2023] FedCFamC2G 148
File number(s): MLG 587 of 2018 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 3 March 2023 Catchwords: MIGRATION LAW – application for judicial review – decision of the Administrative Appeals Tribunal – protection (Class XA) visa – where dispositive issue before Tribunal was whether it was satisfied that there was another place within Pakistan to which applicant could reasonably relocate and where he would be safe from harm – where psychologist’s report indicated that if applicant returned to Pakistan he would become catatonic and experience psychological shut down – finding that Tribunal failed to give proper consideration to psychologist’s report in assessing the reasonableness of relocation and therefore failed to discharge its statutory task – jurisdictional error established – writ of certiorari issued – order for costs. Cases cited: BIM16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 453
CID15 v Minister for Immigration and Border Protection [2017] FCA 780
ELX17 v Minister for Immigration & Border Protection [2018] FCA 1372
MZACX v Minister for Immigration and Border Protection [2016] FCA 1212
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18
Division: Division 2 General Federal Law Number of paragraphs: 79 Date of last submission/s: 14 November 2022 Date of hearing: 14 November 2022 Place: Melbourne Counsel for the Applicant: Dr A McBeth Solicitor for the Applicant: Clothier Anderson Immigration Lawyers Counsel for the First Respondent: Ms E Smith Solicitor for the First Respondent: Clayton Utz ORDERS
MLG 587 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BCM18
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
3 March 2023
THE COURT ORDERS THAT:
1.A writ of certiorari be issued directed to the second respondent quashing the decision dated 6 February 2018.
2.A writ of mandamus be issued directed to the second respondent requiring it to reconsider and determine the applicant’s application according to law.
3.The first respondent pay the applicant’s costs in a sum to be fixed if not agreed.
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
DEPUTY CHIEF JUDGE MERCURI:
Introduction
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) on 6 February 2018 affirming a decision of a delegate of the first respondent, the then Minister for Immigration and Border Protection (‘the Minister’), not to grant the applicant a protection (Class XA) visa (‘protection visa’).[1]
[1] Court book at pages 399 to 426.
Background
The applicant is a 32 year old citizen of Pakistan from the Swat district within the Khyber Pakhtunkhwa province, close to the Afghanistan border.[2] He is a Sunni Muslim and of Pashtun ethnicity.[3]
[2] Court book at page 13.
[3] Court book at page 14.
The applicant arrived in Australia on 23 February 2014 on a student visa.[4]
[4] Court book at page 15.
Application for protection visa on 28 April 2014
On 28 April 2014, the applicant applied for a protection visa.[5]
[5] Court book at page 11.
In his statement attached to his application, the applicant claimed a well-founded fear of persecution, primarily from the Taliban, on the basis of his political involvement with the Awami National Party (‘ANP’), his connection with his uncle who was prominent in the ANP and his involvement in the local Village Defence Committee, among other things.[6]
[6] Court book at pages 49 to 50.
On 12 January 2016, a delegate of the Minister refused the applicant’s application for a protection visa.[7]
[7] Court book at page 167 and following.
Application for review at the Tribunal on 22 January 2016
On 22 January 2016, the applicant filed an application for review of the delegate’s decision with the Tribunal.[8]
[8] Court book at pages 190 to 191.
On 7 June 2017 and 20 June 2017, the applicant, through his legal representative, filed a range of material in support of his application.[9]
[9] Court book at pages 247 to 314.
On 22 June 2016, the applicant gave evidence before the Tribunal. The applicant was represented by his lawyer at the hearing and had the benefit of a Pashto interpreter.[10]
[10] Court book at page 317.
On 6 July 2017, 25 July 2017 and 27 July 2017, the applicant provided further evidence and post-hearing legal submissions to the Tribunal.[11]
[11] Court book at pages 322 to 370.
On 6 February 2018, the Tribunal affirmed the decision of the Minister’s delegate not to grant the applicant a protection visa.[12]
[12] Court book at pages 394 to 395.
Tribunal decision
The Tribunal’s decision record of 6 February 2018 is at pages 399 to 426 of the court book.
It is not necessary for the purposes of these reasons to set out the applicant’s claims in detail.
The Tribunal ultimately concluded that the applicant faced a real chance of serious harm if he were to return to his home area, being the Khyber Pakhtunkhwa province of Pakistan.[13]
[13] Tribunal decision record dated 6 February 2018 at paragraph [10].
The Tribunal accepted that the applicant had received death threats from the Taliban and that if he were to return to his home area, there was a real chance that he would attract the adverse attention of the Taliban and face serious harm from the Taliban.[14] The Tribunal also accepted other aspects of the applicant’s claims, including that the Taliban had killed the applicant’s aunt during a search of his uncle’s home.[15]
[14] Tribunal decision record dated 6 February 2018 at paragraph [60].
[15] Tribunal decision record dated 6 February 2018 at paragraph [57].
Relocation to another area of Pakistan
The dispositive issue in this case was whether, having reached these conclusions, the Tribunal was satisfied that there was another place within Pakistan to which the applicant could reasonably relocate and where he would be safe from harm.[16]
[16] See, for example, Tribunal decision record dated 6 February 2018 at paragraph [10].
In considering whether or not the applicant could reasonably relocate to another area of Pakistan where he would not face a real chance of persecution, the Tribunal made the following assessments:
(a)the applicant would be able to travel and enter Pakistan because he is a Pakistan national who lawfully departed Pakistan and holds a current genuine Pakistan passport;[17]
(b)the applicant could reasonably relocate to either Islamabad or Lahore on the following basis:
(i)Islamabad and Lahore are a significant distance from Kanju and Swat;[18]
(ii)Islamabad and Lahore are large cities with ethnically-diverse populations and ostensibly offer a level of anonymity for the applicant;[19]
(iii)in Islamabad, security has been consistently high for a long time;[20]
(iv)in Lahore, terrorist attacks were largely specifically targeted at high profile persons, such as the police and army;[21]
(v)there is relative stability in the urban capitals of Islamabad and Lahore and not a situation of generalised violence;[22] and
(vi)the applicant being a well-educated man and returnee from a Western country would lessen the chance that the Pakistan authorities in Islamabad or Lahore would have an interest in him.[23]
[17] Tribunal decision record dated 6 February 2018 at paragraph [61].
[18] Tribunal decision record dated 6 February 2018 at paragraph [62].
[19] Tribunal decision record dated 6 February 2018 at paragraph [62].
[20] Tribunal decision record dated 6 February 2018 at paragraph [70].
[21] Tribunal decision record dated 6 February 2018 at paragraph [70].
[22] Tribunal decision record dated 6 February 2018 at paragraph [81].
[23] Tribunal decision record dated 6 February 2018 at paragraph [72].
In making the above assessment, the Tribunal had regard to the following personal circumstances of the applicant:
(a)he was unmarried with no spouse or children to support;
(b)he was mature;
(c)he had demonstrated an ability to make his own way in life away from his parents and family;
(d)while relocation would be unsettling, he would be returning to a city with a sizeable Pashtun community which is dominated by Sunni Muslims;
(e)he has shown the ability to find accommodation with Pakistani students and work in a different culture in Australia over the previous four years;
(f)his reported psychological problems, including the extent to which those problems would affect his ability to find employment, accommodation and make social connections in Islamabad or Lahore; and
(g)the mental health treatment required by the applicant, which the Tribunal found he would be able to access in both Islamabad and/or Lahore.[24]
[24] Tribunal decision record dated 6 February 2018 at paragraphs [89] to [91].
Proceedings in this court
On 7 March 2018, the applicant filed his application for judicial review in this court.[25]
[25] Originating application filed on 7 March 2018.
The matter was initially listed for directions hearing on 6 February 2019.
On 5 February 2019, orders were made by consent by Registrar Burns, including that the directions hearing be vacated, the matter be listed for final hearing, the applicant file any amended application and both parties file written submissions.[26]
[26] Orders of Registrar Burns dated 5 February 2019.
The hearing was ultimately listed before me for final hearing on 14 November 2022.
Grounds of review
By amended application dated 17 October 2022, the applicant seeks judicial review of the decision of the Tribunal dated 6 February 2018 on the following two grounds:
1.The decision of the Tribunal was based on an irrational finding, or alternatively, the Tribunal failed to give proper consideration to or asked itself the wrong question in relation to the psychologist’s report in assessing the reasonableness of relocation.
[…]
2.The Tribunal failed to complete the required statutory task in that it conflated the reasonableness of relocation with the question of whether there was a place where the applicant would be safe from a real risk of significant harm.
By these grounds, the applicant challenges the Tribunal’s decision that the applicant could reasonably relocate to either Islamabad or Lahore in Pakistan and that he would not face a real chance or real risk of harm if he were to relocate to either of those areas.
There is no dispute between the parties about the legal principles which apply when determining whether an applicant could reasonably relocate to another area within their country of origin where they would not face a real chance or a real risk of harm. The dispute is how those principles apply to the facts in this case.
Relocation principles
The applicable principles relating to relocation are set out at paragraphs [14] to [17] of the Minister’s written submissions.
Relevantly, in SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 (‘SZATV’), the plurality of the High Court at paragraph [10] referred to the following comments by Black CJ in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437, where his Honour said:
Although it is true that the Convention definition of refugee does not refer to parts or regions of a country, that provides no warrant for construing the definition so that it would give refugee status to those who, although having a well-founded fear of persecution in their home region, could nevertheless avail themselves of the real protection of their county of nationality elsewhere within that country. The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country. If it were otherwise, the anomalous situation would exist that the international community would be under an obligation to provide protection outside the borders of the country of nationality even though real protection could be found within those borders.
At paragraph [24] of SZATV, the plurality then went on to say:
24.…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.
In determining whether it would be reasonable for a person to relocate to another part of their country of origin, consideration must be given to:
(a)first, whether there is a part of the country where the applicant would not face a real chance or a real risk of harm; and
(b)if so, then whether it would be reasonable for the applicant to relocate to that place.[27]
[27] See BIM16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 453 at [18]; CID15 v Minister for Immigration and Border Protection [2017] FCA 780 at [32].
In BIM16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 453,[28] his Honour Anastassiou J recently restated the principles relevant to the assessment of relocation by reference to the following summary given by Perry J in ELX17 v Minister for Immigration & Border Protection [2018] FCA 1372 at paragraphs [18] to [20]:
[28] BIM16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 453 at [49].
18.…The relevant principles for determining the reasonableness of relocating were not in issue between the parties and may be summarised as follows.
19.First, in determining whether it is reasonable for a person to relocate to another area … the decision maker must not confine itself to whether the person faces a real risk of significant harm. It must also consider the practical realities for, or impact on, the visa applicant of relocation from her or his place of residence to an area of the receiving country where she or he would not face a risk of significant harm … the rationale underpinning the relocation principle in the context of the Refugees Convention was explained by Professor Hathaway in The Law of Refugee Status … (in a passage approved by Black CJ in Randhawa v Minister for Immigration, Local Government & Ethnic Affairs … at 442):
The logic of the internal protection principle must, however, be recognised to flow from the absence of a need for asylum abroad. It should be restricted in its application for persons who can genuinely access domestic protection, and for whom the reality of protection is meaningful. In situations where, for example, financial, logistical, or other barriers prevent the claimant from reaching internal safety; where the quality of internal protection fails to meet basic norms of civil, political, and socio-economic human rights; or where internal safety is otherwise illusory or unpredictable, state accountability for the harm is established and refugee status is appropriately recognised.
…
21.Secondly, the scope of the enquiry which the IAA must undertake into the practical realities of relocation is not free-ranging but will be determined by reference to the issues raised by an applicant with respect to the question of relocation and on the material before it … In other words, the IAA has a statutory duty by reason of its review obligation to consider a visa applicant’s claims and their component integers which are expressly stated or squarely arise on the face of the material before it: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) …
Although this case related to a decision of the Immigration Assessment Authority, the same principles apply to a claim before the Tribunal.
Ground 1
By ground 1, the applicant asserts that the Tribunal’s decision that it was reasonable for the applicant to relocate to Islamabad or Lahore was based on an irrational finding, or alternatively, that the Tribunal failed to give proper consideration to or asked itself the wrong question in relation to the psychologist’s report. For the reasons which follow, I agree with this submission and find that ground 1 is made out.
In particular, ground 1 focusses on the Tribunal’s treatment of the following comments by the applicant’s treating psychologist, Ms Pamela Rosewarne:
It is my opinion that if (the applicant) was required to return to Pakistan, all his current mental health problems would significantly worsen. The extreme anxiety that he is currently suffering would become so extreme that there is a strong possibility that he could potentially ‘shut down’ mentally and become catatonic with fear.
Apart from ongoing and debilitating fears for his safety and survival, (the applicant) would also suffer psychologically if he were to be relocated to an area within Pakistan without the support of family networks and friends, and where there is general insecurity. These factors would have a negative effect on (the applicant’s) ability to manage himself effectively on a day-to-day basis with regard to his emotional functioning, his occupational functioning, his ability to find work, his interpersonal skills and his social functioning.
(The applicant) remains extremely distressed, very fearful and overwhelmingly convinced that a return to any part of Pakistan will end his life.[29]
[29] Court book at page 356.
It is submitted that there were two aspects to Ms Rosewarne’s assessment, the first relating to the impact on the applicant of a relocation back to Pakistan at all, and the second, dependent upon the security situation and whether the applicant would have access to his family and other support networks. In not addressing both of these aspects of Ms Rosewarne’s assessment, it is submitted for the applicant that the Tribunal erred in its decision.[30]
[30] Court transcript at page 3.
It is further submitted that as a consequence, the conclusion that the applicant could reasonably relocate to another part of Pakistan was therefore either irrational or resulted from the Tribunal asking itself the wrong question. In relation to the latter, it is said that the Tribunal wrongly treated Ms Rosewarne’s assessment as conditional on a situation of general insecurity in the place to which the applicant might be relocated.[31]
[31] See Court transcript at page 5.
In her report dated 19 July 2017, Ms Rosewarne stated that she had been seeing the applicant for treatment since late 2014 after he was referred by his general practitioner. As at the date of her report, the applicant had received 21 assessment and counselling sessions with her.
Ms Rosewarne noted that the applicant had been assessed as suffering from Post-Traumatic Stress Disorder (‘PTSD’), Generalised Anxiety Disorder, Panic Disorder and a Depressive Disorder.[32] In her report, she records that the applicant has been prescribed medication for depression and PTSD and for insomnia.
[32] Court book at page 344.
In her report, Ms Rosewarne discusses each of the applicant’s conditions in detail. Relevantly, under the heading ‘Assessment of Mental Health Conditions’, Ms Rosewarne says:
(The applicant) reports of sustaining physical injuries and beatings with a rifle butt by members of the Taliban when he was living in Pakistan. He reports of extreme anxiety when he recalls his experiences with members of the Taliban, the shooting killing of his maternal aunt … and the targeted shooting killing of his maternal uncle…[33]
[33] Court book at page 345.
In his statutory declaration made on 7 June 2017, the applicant said at paragraphs [101] to [102] and [112]:
101.The incident that lead to (Uncle’s) death is evidence that the Taliban and their people have networks everywhere in Pakistan. I cannot be safe anywhere that I go.
102.On top of that, I cannot bear the thought of returning to Pakistan. anywhere (sic) that I go, I will feel as though death is waiting for me. My mind will not be able to tolerate it.
…
112.I am so fearful of going back to Pakistan. I cannot imagine how I will live, how I will function, how I will even leave my house to step into the outside world. I cannot tolerate the thought. I will not survive.[34]
[34] Court book at pages 250 to 268.
In this context, the applicant submits that Ms Rosewarne’s opinion as to the impact on the applicant’s mental health, and in particular that there was a strong possibility if he returned to Pakistan that he would become catatonic, was relevant to the Tribunal’s consideration as to whether it was reasonable for the applicant to relocate within Pakistan.[35]
[35] Applicant’s Outline of Submissions filed on 17 October 2022 at paragraph [12].
It is submitted for the applicant that a fair reading of the Tribunal’s reasons disclose that the Tribunal did not consider this evidence and therefore did not properly discharge its statutory duty to consider the reasonableness or otherwise of a possible relocation within Pakistan.[36]
[36] See court transcript at page 5.
The Minister submits that this ground relates to an interpretation of the following two paragraphs in Ms Rosewarne’s report:[37]
It is my opinion that if (the applicant) was required to return to Pakistan, all his current mental health problems would significantly worsen. The extreme anxiety that he is currently suffering would become so extreme that there is a strong possibility that he could potentially ‘shut down’ mentally and become catatonic with fear. [The First Paragraph]
Apart from ongoing and debilitating fears for his safety and survival, (the applicant) would also suffer psychologically if he were to be relocated to an area within Pakistan without the support of family networks and friends, and where there is general insecurity. These factors would have a negative effect on (the applicant’s) ability to manage himself effectively on a day-to-day basis with regard to his emotional functioning, his occupational functioning, his ability to find work, his interpersonal skills and his social functioning.[38] [The Second Paragraph]
[37] Minister’s Outline of Submissions filed on 31 October 2022 at paragraph [18].
[38] Court book at page 356.
It is submitted for the Minister that this ground is not made out on the basis that the premise underlying it is not established, namely that the risk that the applicant would shut down and become catatonic referred to in the First Paragraph was not dependent upon the objective assessment of the levels of security risk of physical harm in the potential relocation area referred to in the Second Paragraph.[39]
[39] Minister’s Outline of Submissions filed on 31 October 2022 at paragraph [19].
It is submitted by the Minister that the Tribunal did have regard to the views expressed by Ms Rosewarne in considering the relocation issue. However, it is further submitted that the applicant is now seeking to put a gloss on the First Paragraph above, which is not readily apparent from the text of Ms Rosewarne’s report.
For the following reasons, I disagree with this submission. First, when the First and Second Paragraphs are read in their entirety and in context, it is clear that Ms Rosewarne was making two separate statements. The First Paragraph goes to the risk to the applicant if he were to return to Pakistan due to his subjective fears and his mental health issues per se. The Second Paragraph deals with additional risks that he would face if he were to relocate to an area without support of family and friends and in respect of which there is general insecurity.
This reading is clear, not only from those two paragraphs, but from reading those two paragraphs in the context of the report as a whole. The opening words of the Second Paragraph ‘apart from ongoing and debilitating fears for his safety and survival’ are themselves indicative of the fact that the matters dealt with in the Second Paragraph are in addition to and separate from the risk of the applicant mentally shutting down and becoming catatonic as a result of a return to Pakistan per se. Ms Rosewarne’s statements in the Second Paragraph make it clear that there is a distinction between the risks identified by Ms Rosewarne in the First Paragraph and those identified in the Second Paragraph. The former relates to a relocation to anywhere in Pakistan whilst the latter relates to a relocation to an area where the applicant is not supported by family or friends or where there is general insecurity.
It is also noteworthy that in her report, Ms Rosewarne further notes:
(The applicant) relives the memory and constantly thinks and visualises how his aunt and uncle died. He is extremely fearful that he will be killed in the same way if he returns to Pakistan. He becomes worried and visually upset when talking about it.[40]
[40] Court book at page 347.
Having regard to the terms of the First and Second Paragraphs and Ms Rosewarne’s report in its entirety, I do not accept the submission on behalf of the Minister that the language of the First Paragraph is ambiguous.
Nor do I accept that Minister’s submission that the Minister’s reading of Ms Rosewarne’s report is consistent with the submissions made by the applicant himself.[41] It is submitted for the Minister that the concern raised by the applicant in his written submission to the Tribunal was that relocation was not reasonable because of the fear that the applicant had about his safety due to the precarious security situation in all regions.
[41] Minister’s Outline of Submissions filed on 31 October 2022 at paragraph [23].
Relevantly, in submissions provided to the Tribunal by the applicant’s representative dated 19 June 2017, in the context of possible relocation, the applicant’s representative said:
In (the applicant’s) circumstances, the Tribunal is faced with a highly vulnerable applicant …[42]
[42] Court book at page 306.
In these submissions, the applicant’s representative further submitted that:
We note that, since mid-2015, (the applicant) has been receiving ongoing treatment for his psychological symptoms from clinical psychologist, Ms Pamela Rosewarne. Ms Rosewarne has been requested to provide a report in support of (the applicant’s) application for review however, due to her own health issues and availability, was unable to furnish her report prior to the preparation of these submissions. Ms Rosewarne’s report is likely to be central to the Tribunal’s consideration of the question of relocation in this case and, accordingly, we ask that the Tribunal permit a further period after the hearing to provide her further evidence.
…
Two points must be made, in relation to the ‘unreasonableness’ of relocation in (the applicant’s) circumstances, in light of his current state of mental health, being.
i.The level of mental health care and treatment in Pakistan is wholly inadequate; and
ii.The experience of subjective unsafety and insecurity that (the applicant) would experience on return to any region in Pakistan would be inimical to effective treatment of his PTSD.[43]
[43] Court book at pages 307 to 308.
In relation to the second point, the submissions go on to say that:
Secondly, we note (the applicant’s) profound subjective fear of returning to any region within Pakistan, given the precarious security situation in all regions. He states that the constant unrest, or threat of unrest, would trigger debilitating memories of his trauma in Swat and impede his everyday functioning. …
For these reasons … the subjective experience of return given (the applicant’s) particular mental state – we submit that relocation to any region within Pakistan is unreasonable and impracticable in (the applicant’s) circumstances.[44] (emphasis in original)
[44] Court book at page 310.
The applicant’s representative then provided further written submissions dated 27 July 2017 addressing specifically the issue of possible relocation within Pakistan. Relevantly, the applicant’s representative says:
Perhaps more importantly, the Tribunal must consider the prospect of relocation, in particular circumstances of (the applicant’s) serious and compound mental health conditions. We refer to findings in the extensive report of Dr Pamela Rosewarne, dated 19 July 2018. Dr Rosewarne has been treating (the applicant) since 2014; her conclusions are therefore based on nearly three years of observation.
…
Dr Rosewarne reflects carefully upon the likely impact upon (the applicant’s) mental health, if he were returned to Pakistan.
…
As borne out in Dr Rosewarne’s report, the overwhelming symptom of (the applicant’s) various mental conditions is a debilitating, disabling experience of fear and preoccupation with death. His focus on those thoughts is such that other functioning becomes impossible. …
…
In light of this information, the Tribunal must consider the following, very specific questions – how would a person, debilitated with multiple psychological disorders, adapt to life in a new city? How would a person whose overwhelming somatic experience is one of fear, respond to an environment in which there are constant reports of violence? How would such a person sufficiently focus his mind to find employment, then apply himself to work? …
…
In any event, the literal ‘availability’ of mental health care would not ameliorate the decline in (the applicant’s) mental health on return to Pakistan – both because the quality of care is well below that which is required, on Dr Rosewarne’s view, to manage his condition, and because the subjective impact of return would be such that (the applicant) would become ‘catatonic with fear’.
In all of these circumstances, we urge the Tribunal to find that it is not reasonable, in the sense of practical, for (the applicant) to relocate internally within Pakistan.[45]
[45] Court book at pages 368 to 370.
It is apparent from these submissions that the applicant stated that it was not reasonable for him to relocate to another location in Pakistan due to the fear he held for his safety and the mental health issues that he confronted. His claims were not, in my view, limited to fear if he were relocated to an area within Pakistan where there was a lack of security.
The Tribunal accepted that the applicant had the psychological problems identified in the reports.[46] Relevantly, at paragraph [27] of its decision record, the Tribunal stated:
27.… Based on all the material I acknowledge that his psychological problems have been/are attributable to past life experiences, depression, concern for his family in Pakistan, his social isolation and unsettled circumstances, and his unresolved migration status.
[46] Tribunal decision record dated 6 February 2018 at paragraph [27].
Further, at paragraph [32] of its decision record, the Tribunal further stated:
32.As well, I have considered the most recent expert opinion about the effects on the applicant should he return to Pakistan and I note that particular emphasis is given to his stated subjective fear of harm in Pakistan such that there is a strong possibility that he could potentially ‘shut down’ mentally. The expert also gave the opinion that if he relocated without the support of family networks and friends and ‘where there is general insecurity’ he will also suffer psychologically. I have given consideration to this opinion in my later discussion and findings.
At paragraphs [60] to [61] of its decision record, the Tribunal relevantly said:
60.… I therefore accept that if he returns to the family home in Swat in the reasonably foreseeable future, there is more than a remote chance that the applicant will again attract the adverse attention of the Taliban and face serious harm amounting to persecution.
61.I next considered whether the applicant could reasonably relocate to another area of Pakistan where he would not face a real chance of persecution. …
At paragraph [66], the Tribunal considered the security situation in Islamabad and Lahore.
At paragraph [81], the Tribunal found that there was not a real chance that the applicant would be pursued and/or harmed in Islamabad or Lahore now or in the reasonably foreseeable future, or otherwise be targeted by Taliban, or others for his past activities or his identity. Relevantly, the Tribunal said:
81.… In light of the foregoing, I accept there is relative stability in the urban capitals of Islamabad and Lahore and not a situation of generalised violence, and I am not satisfied the relative stability is transient.
At paragraph [82], the Tribunal considered the applicant’s psychological issues and the limited availability of mental health treatment options in Pakistan but did not accept that the ‘general scarcity of psychological support and counselling in Pakistan amounts to serious harm (or amounts to significant harm for the purposes of complimentary protection’.
At paragraphs [88] to [89] the Tribunal went on to say:
88.As well, I am satisfied it would be reasonable for the applicant to relocate to either of those areas as I now discuss. …
89.My considerations have also encompassed the applicant’s particular circumstances. … I acknowledge that relocating from Australia to Islamabad or Lahore will be unsettling.
At paragraph [90], the Tribunal considered the applicant’s ability to find alternative employment in a Pakistan city in which he had not previously lived, and at paragraph [91], the applicant’s ability to access mental health treatment in Islamabad and Lahore.
At paragraph [92], the Tribunal then deals with Ms Rosewarne’s opinions as set out in her report. Relevantly, the Tribunal said:
92.… in light of the foregoing I find there is not generally insecurity in Islamabad or Lahore, and that the security situation there now and in the reasonably foreseeable future does not render relocation unreasonable for the applicant with his profile and psychological problems.
The Tribunal then went on to consider the effect on the applicant of having no family in Islamabad or Lahore. The Tribunal also considered that the applicant had demonstrated a level of resilience demonstrated after having experienced some traumatic incidents in Pakistan. The Tribunal went on to say also in paragraph [92]:
92.…. In sum, I have considered the expert’s opinion about the possibility of the applicant suffering psychologically and potentially shutting down if he returned to Pakistan, but in light of the foregoing I consider the chance that he faces further traumatizing events is remote. In these circumstances I am not satisfied there is a real chance that upon his return he will suffer symptoms any more serious than he has so far shown in Australia or other impairments. …
The reference in this paragraph to ‘the foregoing’ is a reference to the Tribunal’s consideration of the security situation in Pakistan, in particular in Lahore and Islamabad, and the impact on the applicant of not having a network of family and friends nearby.
As stated, I agree with the submissions for the applicant that there are two points made in the Ms Rosewarne’s report. As outlined above, the first is that return to Pakistan per se would cause the applicant’s extreme anxiety and fear to worsen, with a strong possibility that the applicant would shut down and become catatonic with fear. The second point was that if he was required to relocate to an area where he did not have family and friends, that would also lead to the applicant suffering psychological harm. The applicant relied upon Ms Rosewarne’s report as a basis for arguing that it was not reasonable for the applicant, in his particular circumstances, to relocate. In those circumstances, the Tribunal was required as part of the consideration of whether it would be reasonable for the applicant to relocate to consider Ms Rosewarne’s opinion.
I agree that the Tribunal did not consider the impact on the applicant, given his various mental health issues, of his mere presence in Pakistan per se. Rather, as submitted for the applicant, the Tribunal misconstrued the report. The Tribunal did not consider whether the applicant’s mere presence in Pakistan would have a serious adverse psychological effect on the applicant. In doing so, the Tribunal erred in its decision.[47]
[47] MZACX v Minister for Immigration and Border Protection [2016] FCA 1212 (‘MZACX’).
As submitted for the applicant, it was open to the Tribunal to consider this claim and, on an appropriate basis, to have dismissed it. Alternatively, it could have accepted that evidence, but having considered all of the relevant evidence before it, concluded nonetheless that a relocation was reasonable. Ultimately, I accept the applicant’s submission that the Tribunal simply did not consider the claim that there was a strong possibility that the applicant would suffer a psychological shut down and become catatonic, simply by being required to return to Pakistan.
For this reason, the Tribunal asked itself the wrong question and did not consider a claim which reasonably arose from the applicant’s material, or evidence upon which that claim was based. Ground 1 is therefore made out.
Ground 2
Having come to this view in relation to ground 1, it is not strictly speaking necessary for me to consider ground 2. However, in circumstances where ground 2 was argued fully before me, it is appropriate that I consider and determine whether it gives rise to a jurisdictional error.
By ground 2, the applicant asserts that the Tribunal conflated the two stages of the test for determining whether relocation was reasonable for the applicant. As stated, there was no dispute between the parties about the legal principles in relation to the question of whether it would be reasonable for a person to relocate to another part of their country of origin, including that it is a two stage assessment.
As stated by Kenny J in MZACX v Minister for Immigration and Border Protection [2016] FCA 1212 (‘MZACX’) at paragraph [35]:
35.In considering the possibility of relocation within a visa applicant’s country of nationality, the first question that arises is whether, objectively, there is no appreciable risk of the occurrence of the feared persecution in another part of that country. If there is an appreciable risk, then the issue of relocation for a particular applicant is concluded. If, however, there is no appreciable risk of the feared persecution at some other place in the country of nationality, the issue of relocation can be further explored. At this point, as indicated earlier, the question is whether the relocation of the visa applicant to that place is ‘reasonable’, in the sense of ‘practicable’, having regard to the particular circumstances of the applicant and the impact upon the applicant of relocation to that place. In answering this question, it may be relevant to include different or lower risks of harm faced by the applicant at a suggested place in assessment of the reasonableness of relocation in the particular circumstances of the case. Issues of risk of harm arise at these two stages of inquiry, although each stage of the inquiry has a different focus. Jurisdictional error may arise where a Tribunal conflates the two stages of the inquiry …
It is submitted for the applicant that this is what occurred here, namely that the Tribunal conflated the two stages of the inquiry.
For the following reasons, I do not agree with this characterisation of the Tribunal’s reasoning in this case. The Tribunal undertook the first stage of the assessment, namely, it considered whether there was a part of Pakistan in which the applicant would not face a real chance or real risk of harm at paragraphs [61] to [87] of its decision record. Then, and as a separate consideration, the Tribunal addressed the second stage of the assessment and in doing so, considered the applicant’s particular circumstances, at paragraphs [88] to [95].
It is the case that in considering the reasonableness of any relocation to a safe place, the Tribunal had regard to the security level in Lahore and Islamabad. That of itself, however, is not evidence of a conflation of the two stages of the reasonableness assessment. As noted by Kenny J in MZACX at paragraph [35], issues of risk of harm can arise at both stages although the inquiry at each stage has a different focus.
In this case, the impact of any security risk was relevant to the assessment of reasonableness of a relocation in circumstances where the applicant himself raised his fear of harm if he were required to return anywhere in Pakistan given ‘the precarious security situation’.[48]
[48] Court book at page 310.
The Tribunal did not conflate the two stages of the assessment of whether it was reasonable for the applicant to relocate to another part of Pakistan.
For this reason ground 2 is not made out.
Conclusion
As ground 1 has been made out, I make the orders sought by the applicant.
I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Associate:
Dated: 3 March 2023
0
6
0