BUZ15 v Minister for Immigration
[2016] FCCA 1735
•20 July 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BUZ15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1735 |
| Catchwords: MIGRATION – Protection visa application – review of decision of Refugee Review Tribunal – whether the Tribunal correctly considered the “relocation principle” – whether the Tribunal failed to consider whether it would be reasonable for the applicant to relocate to Lahore – whether the Tribunal failed to assess the prospects of harm upon relocation – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.36(2) Convention Relating to the Status of Refugees (1951) as amended by the Protocol Relating to the Status of Refugees (1967), Article 1A(2) |
| Cases cited: Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper Ltd. [2013] SCC 34, [2013] 2 S.C.R. 458 Minister for Immigration & Border Protection v SZSCA (2014) 254 CLR 317; [2014] HCA 45 Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Nzolameso v Westminster City Council [2015] UKSC 22 Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 |
| Applicant: | BUZ15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 808 of 2015 |
| Judgment of: | Judge Smith |
| Hearing date: | 21 June 2016 |
| Date of Last Submission: | 21 June 2016 |
| Delivered at: | Sydney |
| Delivered on: | 20 July 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Williams |
| Solicitor for the Respondents: | Ms C Tipene, Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
BRG 808 of 2015
| BUZ15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Administrative Appeals Tribunal made on 24 August 2015. The Tribunal affirmed a decision of a delegate of the Minister to refuse to grant the applicant a protection visa.
Background
The applicant is a citizen of Pakistan who arrived in Australia on 9 August 2012 and lodged an application for a protection visa on 5 November 2012. He accepts that his claims in support of his protection visa application were accurately summarised by the Tribunal in the following paragraphs of its statement of reasons:
4.In summary, the applicant fears persecution on the basis of his religion as Muslim Shia and several particular social groups, being a returnee from a Western country, a Turi Shia and a Shia from Kurram Agency, a young male, a young Shia Muslim male, a young Shia Muslim male from Parachinar (or young male from Parachinar). He left Pakistan because he feared he would be killed by the Taliban or kidnapped and tortured and forced to join the Taliban army.
5.In his statement the applicant claimed the Taliban actively target Muslim Shias and since 2007 the killings have become more frequent and he felt increasingly unsafe because of fears he will be targeted because he is a Muslim Shia. In 2008 his uncle was killed in a roadside explosion by the Taliban. In 2008 he was walking home from college with two friends. The Taliban opened fired in the city area in Parachinar and his two friends were killed in the shooting. After this and the killing of his uncle his parents told him he could no longer continue his studies. The Taliban were more frequently targeting young Muslim Shia students because they wanted to eradicate the young and educated Shias. He feared for his safety so he stayed at home. It 2010 one of his friends about the same age was targeted by the Taliban when he was farming near his home and was killed.
6.His life was becoming increasingly restricted because of his fear. He attended mosque three times a day to pray but went in fear. The government do not have the power to protect people. He did not leave Pakistan sooner as he had hoped in time the situation would improve and the government would maintain control. He hears Muslim Shias are being persecuted and in Parachinar they are targeting young males and recruiting them to fight in Afghanistan. For the combination of being a Muslim Shia from Parachinar and a young male he feared he could not remain in Pakistan any longer or he would be killed by the Taliban. He could not relocate because his religious beliefs exist throughout the country and he does not have family living in any other part of Pakistan and would have no means of finding protection, accommodation or employment. He left by bus to Islamabad and it was scary as the Taliban occupied the roads. One of the vehicles in the convoy was shot at. His family told him two from his village were killed in the shooting.
7.According to his application he completed high school in 2007 and commence at degree college in 2008 but did not complete college. He has not been employed but was supported by his family. He speaks, reads and writes Pashtun and Urdu and a little English. He left Pakistan in April 2012, spent time in Malaysia and Indonesia before arriving in Australia in August 2012.
On 4 March 2014 a delegate of the Minister made a decision to refuse to grant the applicant a protection visa. The applicant applied to the Refugee Review Tribunal[1] for review of that decision.
[1] On 1 July 2015 the functions of the Tribunal were taken on by the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).
The applicant attended a hearing conducted by the Tribunal on 18 May 2015 and on 24 August 2015 the Tribunal made its decision affirming the decision of the delegate.
Tribunal’s decision
The Tribunal accepted that the applicant was a Shia Muslim of Turi and Pashtun ethnicity who lived in Parachinar. It accepted that his family still lived there and that his brothers had worked as labourers in support of the family and that the applicant had not worked in Pakistan.
While the Tribunal had some doubts about the death of his uncle and friends, it gave him the benefit of the doubt and accepted that they were killed in 2008. The Tribunal also accepted that there were explosions in the applicant’s local area in 2007 and 2008 and that the applicant stopped attending college out of fear in 2008, however it did not accept that he had been specifically targeted or that he had suffered any serious harm. The Tribunal did not accept that the applicant is or was specifically targeted by the Taliban or anyone else.
The Tribunal was satisfied that the conflict in the Kurram Agency was ongoing and that notwithstanding improvements, Shias were still being targeted because of religion and political opinion of opposition to the Taliban. In light of that, it found that the applicant faced a real chance of persecution for reasons of his religion if he returned to his home now or in the reasonably foreseeable future. The Tribunal also found that the authorities in Pakistan were struggling to contain the violence and that the state of Pakistan could not meet the level of protection which citizens are entitled to expect.
For those reasons, the Tribunal accepted that there was a real chance that the applicant would face serious harm upon his return to Parachinar and that the significant and essential reason for that would be because he is a Pashtun Shia Muslim or because of imputed political opinion of being anti-Taliban.
The Tribunal went on to consider whether there was any other place in Pakistan where the applicant might not face such a risk of harm and to where he might reasonably be expected to relocate.
Having considered the country information and the applicant’s circumstances, the Tribunal was satisfied that the applicant did not have a well-founded fear of persecution for any of his claimed reasons in Lahore, a city in the Punjab area of Pakistan. Further, having considered each of the applicant’s particular circumstances, it found that the applicant could reasonably relocate to Lahore. For those reasons, the Tribunal found that the applicant did not have a well-founded fear of persecution if he were to return to Pakistan now or in the reasonably foreseeable future and was not satisfied that the applicant satisfied the criterion in sub-s.36(2)(a) of the Migration Act 1958 (Cth).
The Tribunal then considered whether the applicant satisfied the criterion in sub-s.36(2)(aa) of the Act. For the reasons that it had given in respect of the criterion in sub-s.36(2)(a), the Tribunal accepted that there was a real risk that the applicant would face significant harm upon his return to Parachinar, including arbitrary deprivation of life, torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment. However, having found that it was reasonable for the applicant in his particular circumstances to relocate to an area outside his home area where there would not be a real risk that he would suffer significant harm, the Tribunal concluded that the applicant did not satisfy the criterion in sub-s.36(2)(aa).
For those reasons the Tribunal affirmed the decision of the delegate.
Consideration
The applicant only relied on one ground in his amended application. It is necessary to set out that ground as it appears in the amended application and is as follows:
Ground 3: Jurisdictional Error of Law - Misapplication of law or failure to ask the correct question
3.The second respondent erred by misinterpreting, misunderstanding or misapplying the applicable law, or has otherwise failed to ask the correct question. Having accepted that the applicant has a well-founded fear of being persecuted for a convention or complementary reason if he is returned to Parachinar, Pakistan, objectively, there was an appreciable risk of the feared persecution occurring if the applicant was relocated in Lahore. Alternatively, it was unreasonable, in the sense of being practicable, to expect the applicant to be relocated to Lahore having regard to a) the particular circumstances of the applicant, b) the circumstances the applicant would reasonably be expected to face in the place of relocation, or c) the impact on the applicant of being relocated to Lahore.
(Emphasis in original)
There are two parts to this ground: first is the assertion that there was an appreciable risk of harm in Lahore. As will be seen, that amounts to no more than an attack on the merits of a finding of fact made by the Tribunal. The second is that it was unreasonable to expect the applicant to relocate to Lahore. Put in that way, it is another assertion of fact and raises no jurisdictional error. At the hearing, counsel for the applicant argued the point differently. He said that the Tribunal’s decision insofar as it was based on the relocation finding was legally unreasonable on the material before the Tribunal.
When it was suggested to counsel that this was not a ground in the application, he argued that it was and did not seek leave to amend. I disagree. Ground 3, as framed in the amended application, did not raise any unreasonableness ground.
I would add that, even if there had been an application to amend the application to include the new argument, I would have refused the application because of its lateness, the complete lack of explanation for the delay in raising it and, critically, its complete lack of merit.
Counsel for the applicant argued that legal unreasonableness was an essential part of the relocation principle because an essential element of it was that it must be reasonable to expect a putative refugee to relocate to another area in his or her country of nationality or residence. In my view, that argument exemplifies the risk of approaching judicial review by reference to categories or catchwords without a proper understanding of the underlying legal concepts.
In light of that, it will be necessary to examine the leading authorities on what is often referred to as the “relocation principle” or “internal relocation principle” in order to understand both its place in the Tribunal’s task, and the meaning of “reasonable” in that context.
Before doing so, it is necessary to note another new ground raised by counsel for the applicant in oral submissions, namely, that the Tribunal erred by finding that the applicant did not have a “well-founded fear” in Lahore because the Tribunal should have determined whether there was “an appreciable risk” of harm in Lahore. Again, counsel for the applicant argued that this ground was not new and pointed to the words “appreciable risk” in the amended application. I reject that argument.
No sensible reading of any document filed and served by the applicant raised this ground. In any event it relies on a nit-picking approach to the Tribunal’s reasons so often and so widely warned against: Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272, Nzolameso v Westminster City Council [2015] UKSC 22 at [32] per Lady Hale (with whom Lord Clarke, Lord Reed, Lord Hughes and Lord Toulson agreed); Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper Ltd. [2013] SCC 34, [2013] 2 S.C.R. 458, at [54] (LeBel, Fish, Abella, Cromwell, Karakatsanis and Wagner JJ).
There is no difference of substance between an appreciable risk and the “real chance” of harm that is understood in the phrase “well-founded fear of persecution”. In any event, the Tribunal at [71] of its reasons, used the words “appreciable risk” when it summarised the approach it would take in applying the internal relocation principle.
For those reasons, the argument does not arise and I would have refused any application to amend to raise the argument.
I turn now to the issue of relocation.
Relocation
In order to be granted a protection visa, an applicant must satisfy the criteria for that visa. One of those criteria is found in s.36(2)(a) of the Act which provides:
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee;
…
This criterion is, essentially, the same as the criterion previously found in s.36(2). As explained by the High Court in NAGV and NAGW of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 222 CLR 161, [2005] HCA 6, that criterion imported the notion of “refugee” found in Article 1A(2) of the Convention Relating to the Status of Refugees (1951) as amended by the Protocol Relating to the Status of Refugees (1967) (“Convention”).The relevant version of the criterion simply makes that conclusion plain on its face.
The essential portion of Article 1A(2) provides that the term “refugee” shall apply to any person who:
(2)…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence ... is unable or, owing to such fear, is unwilling to return to it.
In Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 (“Randhawa”) Black CJ said at 440 – 441:
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 country 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.
The understanding of the word “protection” in Article 1A(2) was developed later in the decision of the High Court in Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 1, [2002] HCA 14 where it was held at [21] per Gleeson CJ and [61]‑[62] per McHugh and Gummow JJ, that the word refers to the diplomatic or consular protection extended abroad by a county to its nationals. As will be seen, that does not mean that the broader notion of protection as it was referred to by Black CJ in Randhawa is irrelevant.
The place of the “relocation principle” in the definition of refugee is now understood to have been explained by the process of reasoning adopted by Lord Bingham of Cornhill in Januzi v Secretary of State for the Home Department [2006] 2 AC 426 (“Januzi”), SZATV v Minister for Immigration & Citizenship (2007) 233 CLR 18; [2007] HCA 40 (“SZATV”) at [19] (Gummow, Hayne and Crennan JJ).
In Januzi Lord Bingham of Cornhill said relevantly at [440]:
The Refugee Convention does not expressly address the situation at issue in these appeals where, within the country of his 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 to which reference has been made: for if a person is outside 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 would 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 the country of his nationality owing to a well-founded fear of being persecuted for a Convention reason.
…
In SZATV the plurality explained at [20] that:
The reference in the passage to the unavailability of the protection of the country of nationality of the refugee is best understood as referring not to the phrase “the protection of that country” in the second limb of the definition, but to the broader sense of the term identified in Respondents S152/2003. This was the international responsibility of the country of nationality to safeguard the fundamental rights and freedom of its nationals.
The plurality went on to say at [23]-[25]:
23.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 suffer from the defects urged by the appellant. It does not turn upon a “hypothetical assumption” nor does it 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.
24.However, that does not mean that, without more, the formulation by the Minister is sufficient and satisfactory. 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.
25.It is true that the Convention is concerned with persecution in the defined sense, not with living conditions in a broader sense.
…
In Minister for Immigration & Border Protection v SZSCA (2014) 254 CLR 317; [2014] HCA 45 the majority (French CJ, Hayne, Kiefel and Keane JJ) said at [21]:
The “internal relocation principle” is well established. According to this principle, a person is not a refugee within the meaning of the Convention if he could avail himself of the real protection of his country of nationality by relocating to another part of that country.
…
Justice Gageler dissented, not on the question of principle, but on the application of that principle to the particular facts of the case. His Honour explained that the relocation principle arose from the fourth of the cumulative elements of the definition of “refugee” in Article 1A(2) of the Convention, namely that the person must be outside the country of his or her nationality "owing to" that well-founded fear. His Honour explained the principle as follows:
40.Underlying the principle is a purposive understanding of the causative connection connoted by the words “owing to” within the context of the Convention. The purposive understanding is that a person is not in need of the protection of the international community, for which the Convention provides, outside the country of his or her nationality if it would be reasonable for the person to return to a region within that country where the person would be safe from persecution.
41.Questions raised by the fourth element of the definition are therefore: whether there is a region within the country of nationality in which there is no appreciable risk of the persecution of which the person has a well-founded fear; and, if so, whether or not it would be reasonable for the person to locate within that region on return to his or her country of nationality.
The internal relocation principle, then arises from the causative element in the definition of a “refugee” in Article 1A(2) of the Convention: “owing to …”. A person who could, in all the circumstances, return to his or her country to an area where there is no well-founded fear of harm cannot be said to be outside of that country “owing to” a well-founded fear of persecution.
It is often the case, as it was here[2], that the Tribunal makes a finding that relocation is reasonable and concludes for that reason that there is no well-founded fear of persecution. For the reasons given above, that approach misunderstands the proper place and effect of the internal relocation principle. However, such reasoning will not ordinarily amount to jurisdictional error because the inevitable result of a relocation finding will be that the visa applicant does not meet the definition of a refugee and so cannot satisfy the criterion in sub-s.36(2)(a) of the Act. In any event, the applicant here made no complaint about the Tribunal’s reasoning in this respect. His only concern was with the Tribunal’s determination of the relocation issue.
[2] See [85] of the Tribunal’s reasons
Ground 3 of the amended application
I now turn to consider the two parts of ground three in the amended application in greater detail. The first is that there was an appreciable risk of harm in Lahore.
The assertion that “objectively, there was an appreciable risk of the feared persecution occurring if the applicant was relocated in Lahore” does nothing to elucidate any jurisdictional error. Rather, it is simply a statement to the effect that the Tribunal should have found that there was such a risk. That statement rises no higher than an attack on the merits of the decision. Nevertheless, it is necessary to consider the particulars to ground 3 to discern whether they shed any light on the applicant’s argument.
There are 6 particulars which I will deal with in turn.
First particular of ground 3:
a) For the reasons particularised from [1](a)-(v).
This particular is less than unhelpful. The paragraphs referred to are the particulars of the first ground of the amended application (which is no longer pressed) and are as follows:
Protection Claims
(a)At [21] of the decision record, the second respondent accepted the ‘applicant is a Shia Muslim of Turi and Pashtun ethnicity who lived in Parachinar’ At [4], in summary, the applicant fears persecution on the basis of his religion as Muslim Shia and several particular social groups, being a returnee from a Western country, a Turi Shia and a Shia from Kurram Agency, a young male, a young Shia Muslim male, a young Shia Muslim male from Parachinar (or young male from Parachinar). He left Pakistan because he feared he would be killed by the Taliban or kidnapped and tortured and forced to join the Taliban army.
State Protection
(b)At [42], the second respondent accepted ‘[i]n such circumstances, the Tribunal accepts that there is a real chance that the applicant would face serious harm upon his return to Parachinar. The Tribunal also accepts that the significant and essential reason for this would be because he is a Pashtun Shia Muslim or because of imputed political opinion of being anti-Taliban.’
Real Risk of Harm if Relocated to Lahore
(c)At [45], the second respondent ‘discussed possibilities of relocation to Lahore, Islamabad or Rawalpindi.’
(d)At [47], The applicant claimed he cannot safely relocate anywhere in Pakistan because he is identifiable as a Turi Shia Syed from his name and ID card, and identifiable as a Shia from Parachinar as well from his appearance, accent and religious practices.’
(e)At [47], the second respondent ‘accepts that the applicant's identity documents identify him by name, tribe and place of origin and that he can be identified as a Shia (Syed) Muslim of the Turi tribe from Parachinar. Further, the Tribunal accepts the applicant's family name is one which would readily identify him as a Shia Syed. His family, name is listed in the DFAT Shia report as a common Shia name. Further he would be identifiable in attending Shia mosques. The Tribunal accepts that the applicant would be identified throughout Pakistan as a Turi Shia from Parachinar, Kurram Agency.’
(f)At [49], the second respondent accepted that as a ‘Turi Shia from his home region, the applicant will be imputed with a political opinion that is opposed to the Taliban and other Sunni extremists.’
(g)At [54], the second respondent found that the ‘Taliban is located primarily within the FATA[3] however reports indicate that the Taliban is capable of reaching targets in Lahore.’ ‘The Tribunal has had regard too to reports the Punjab police forces appease Sunni militant groups and that the LeJ[4] acts with impunity.’
[3] Federally Administered Tribunal Areas.
[4] Lashkar-e-Jhangri militant group.
(h)At [55], the ‘Tribunal is mindful that Taliban, LeJ and other Sunni militant groups are present in the Punjab.’
(i)At [60], the second respondent ‘accepts that capacity restraints faced by Pakistani authorities limit the government's ability to protect the Shia population at all times and in all places. The Tribunal accepts that sectarian and terrorist attacks including those aimed at Shias and other religious minorities continue to occur sporadically. The Tribunal gives weight to the fact that according to the Pakistan Institute of Peace Studies over 85 per cent of the recorded incidents of sectarian violence in Pakistan occurred in the applicant's home area, Karachi, Quetta and Gilgit.’
(j)However, at [61], the second respondent found that ‘given the significant number of Shias living in Lahore together with the sporadic nature of those attacks particularly in Lahore and DFA T's assessment and the SATP statistics that Lahore remain relatively free from the threat of militant, sectarian and politically motivated violence cause the Tribunal to consider that the chance of the applicant being harmed in such an attack is remote, and therefore not real.
(k)At [62], the second respondent ‘accepts the applicant will practise his religion and may attend the mosque and processions. The Tribunal accepts that where the applicant is most likely at risk because he is a Shia, s when he attends religious processions or is at a location where large numbers of Shias gather. There have been a number of attacks on Shia Muslims at Ashura processions in Pakistan in the past..’ Further, the second respondent observed, that ‘[h]owever a lack of resources limits the ability to protect the Shia community at all times and in all places given the population is large and dispersed.’
(l)At [66], the second respondent erred by finding the ‘chance of the applicant being harmed in such an attack in Lahore or when travelling to Lahore is remote, and therefore not a real
Failed Asylum Seeker
(m)At [67], the tribunal does not accept that he will be targeted because of his conduct in Australia or as a returnee from a western country and at [68], the second respondent did not ‘accept that failed asylum seekers face a real chance of serious harm.’
(n)At [68], the second respondent ‘does not accept on the evidence before it that the applicant's profile as a young single, Turi Shia educated male from Parachinar who may be imputed with a political opinion that is opposed to the Taliban and other Sunni extremists and who has spent nearly three years in Australia means that there is a real chance the applicant will be targeted by extremist groups or the Taliban in Lahore.’
Reasonableness
(o)At [72], the applicant claimed ‘he could not relocate because he only speaks a little Urdu and could not get a job or accommodation and he would be targeted by the Taliban or SSP or Lej.’
(p)At [73], the second respondent accepted that the ‘applicant may not speak Punjabi’, at [74], accepted he has not worked in Pakistan and not lived outside Parachinar, at [75], accepted he may have been inexperienced and lacked employment skills when he left Pakistan, that the culture may be different in a big city compared to living in Parachinar, at [76], the second respondent was ‘mindful the applicant will face difficulties relocating to Lahore, finding work and accommodation’ and ‘it may take the applicant some time to re-establish himself in terms of employment and that there are high levels of unemployment throughout Pakistan and accommodation costs higher in larger cities’, the second respondent erred by not ‘accept that having to find work, accommodation in a new or unfamiliar place outside Kurram Agency without friends, family or support, like Lahore is unreasonable.’
(q)At [79], the second respondent ‘accepts that he will continue to practise his Shia religion and attend mosques or processions. The Tribunal accepts the applicant's family name and attendance at Shia Mosque will make him more readily identifiable as a Shia.’
(r)However, at [79], the second respondent erred by finding that the ‘tribunal does not accept the applicant faces any appreciable risk of harm. Further, The tribunal does not accept the level of risk of attacks by the LeJ, Taliban or other extremist groups or other Sunnis, or ethnic groups makes it unreasonable for the applicant to relocate to Lahore. On the evidence, the tribunal finds that even having regard to the applicant's religious practice and circumstances and sectarian violence that it is reasonable for him to relocate to Lahore.’
(s)At [84], the second respondent erred by finding ‘that it is reasonable, in the sense of practicable, having regard to all of the applicant's circumstances, for him to relocate to Lahore.’
The Refugee Criterion
(t)At [86], the second respondent erred by finding The Tribunal finds, therefore, that there is not a real chance that the applicant will be persecuted for reasons of his religion, political opinion, membership of particular social group or for any other Convention reason, either individually or cumulatively, now or in the reasonably foreseeable future, in another part of Pakistan, such as Lahore. Accordingly, the Tribunal finds that the applicant does not have a well-founded fear of persecution if he returns to Pakistan now or in the reasonably foreseeable future.’
The Complementary Criterion
(u)At [89], the second respondent erred by finding that the Tribunal finds that it is reasonable for the applicant, having regard to his particular circumstances, to relocate to an area of the country outside Parachinar and FATA, such as Lahore, where there would not be a real risk that he will suffer significant harm.’
(v)To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord natural justice to the applicant by the second respondent.
(Errors in original)
Paragraphs (a) and (b) do no more than repeat the claims made by the applicant in support of his visa application. Paragraphs (c) to (k) purport to summarise the Tribunal’s findings about those claims. Paragraph (l) contains a bald assertion of error. Paragraphs (m) to (q) deal with the applicant’s arguments and the Tribunal’s findings about relocation. Paragraphs (r) to (t) contains further bald assertions of error and paragraph (u) is a trite statement of law. Paragraph (v) contains an assertion that cannot stand in light of the Tribunal’s statement at [91].
Second particular of ground 3:
b)After finding that there was a ‘risk of harm’ to the applicant if he relocated to Lahore, the test of a ‘real risk’ of harm was established and it was incongruous for the second respondent to then find that the risk was ‘remote and therefore not real’ and the second respondent therefore misapplied the applicable law or failed to ask the correct question.
Contrary to this argument, it is not incongruous in all cases to find that there is a risk of harm and then to conclude that that risk is remote. Whether it is “incongruous” (which I take to mean evocative of some form of jurisdictional error) will depend on the particular evidence, the Tribunal’s view of that evidence and the Tribunal’s other findings of fact.
At [61] of its reasons, the Tribunal referred to information from DFAT to the effect that Lahore remained relatively free from the threat of militant, sectarian and politically motivated violence. At [62] the Tribunal stated that it accepted that the applicant was “most likely at risk” as a Shia in religious processions or in locations where large numbers of Shias gather. However, at [64] it concluded that the risk of harm to the applicant as a Shia in Lahore was remote because the attacks have declined and are sporadic, the size of the Shia population and the availability of state protection.
Each of the matters relied on by the Tribunal provided a logical basis for its conclusion that the risk of harm was remote. There was nothing incongruous or legally erroneous about its conclusion and the applicant’s real complaint is that another finding ought to have been made. That is nothing more than an attack on the merits of the finding.
The remaining particulars appear to relate to the second part of ground 3, namely, that it was unreasonable to expect the applicant to relocate to Lahore.
Third particular of ground 3:
c)After finding that the identity documents and family name is one which would readily identify the applicant as a Shia, that there have been attacks against Shia Mosques, that the applicant is at risk because he is a Shia who attends religious processions, that country information indicates the targeting of Shia groups by Sunni extremist, and that it will be difficult for the applicant to find accommodation and employment in Lahore, the second respondent erred by finding it was reasonable for the applicant to relocate to Lahore and misapplied the applicable law or failed to ask the correct question.
The element of this particular that concerns the risk of harm has already been dealt with. The balance of the particular, once again, only goes to the merits of the decision. The Tribunal dealt with all of the matters raised by the applicant: his language, education, work prospects, religion and past harm: [72] – [85]. None of those matters, either together or separately, dictated the conclusion that it would not be reasonable to expect the applicant to relocate to Lahore such that his failure to seek protection from the authorities was explicable by a well-founded fear of persecution in his home region. Thus, that question was a matter for the exercise of judgment by the Tribunal and not one for the Court.
Fourth particular of ground 3:
d)What was absent from the Tribunal’s reasons for the decision is evidence that it asked itself what the relocation principle required it to ask itself; and that is whether it was reasonable, in the sense of practicable, to expect the applicant to relocate to Lahore having regard to the fact that the circumstances the applicant would reasonably be expected to face in Lahore would include the asserted practical realities. By failing to ask itself this question, the Tribunal’s conclusion that it was reasonable for the applicant to relocate to Lahore was arrived at as a result of jurisdictional error.
The assertion in this particular cannot stand in light of the statement by the Tribunal, at [43], that “a person will be excluded from refugee status if it is reasonable, under all the circumstances, in the sense that it is practicable, to expect him or her to seek refuge in another part of the country.”
Fifth particular of ground 3:
e)Not only did the Tribunal not ask itself whether, having regard to the asserted practical realities, it was reasonable to expect the applicant to relocate to Lahore, it did not consider all of the personal circumstances of the applicant relevant to determining the reasonableness of the applicant’s relocating to Lahore.
This assertion is rejected for the reasons given at [47] above.
Sixth particular of ground 3:
f)As such, the second respondent erred by misinterpreting, misunderstanding or misapplying the applicable law, or has otherwise failed to ask the correct question whether it was reasonable for the applicant to relocate to Lahore given his religious beliefs or socio-economic circumstances, especially with regard to employment and accommodation.
This particular adds nothing to the previous particulars.
Conclusion
On any level of examination, the grounds raised by the applicant do not reveal any jurisdictional error in the Tribunal’s decision.
The application must be dismissed.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 20 July 2016
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