BWB15 v Minister for Immigration
[2017] FCCA 133
•30 January 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BWB15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 133 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – protection visa – applicant from Pakistan – internal relocation – whether the Tribunal considered the applicant’s mental health issues and lack of family support – whether the Tribunal made errors of the types identified in S395, MZACX, SZIED. |
| Cases cited: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs; Appellant S396/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; (2003) 78 ALD 8; (2003) 203 ALR 112; (2003) 78 ALJR 180; [2003] HCA 71 MZACX v Minister for Immigration and Border Protection [2015] FCCA 681 MZACX v Minister for Immigration and Border Protection [2016] FCA 1212 SZIED v Minister for Immigration and Citizenship [2007] FCA 1347 |
| Applicant: | BWB15 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File number: | MLG 2071 of 2015 |
| Judgment of: | Judge Riley |
| Hearing date: | 29 November 2016 |
| Date of last submission: | 29 November 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 30 January 2017 |
REPRESENTATION
| Counsel for the applicant: | William Thomas |
| Solicitors for the applicant: | JT Lawyers Pty Ltd |
| Counsel for the first respondent: | Richard Knowles |
| Solicitors for the first respondent: | Sparke Helmore Lawyers |
| Counsel for the second respondent: | No appearance |
| Solicitors for the second respondent: | Sparke Helmore Lawyers |
ORDERS
The application filed on 10 September 2015, amended on 16 June 2016 and further amended on 15 November 2016 be dismissed.
The applicant pay the first respondent’s costs, fixed in the sum of $7,206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2071 of 2015
| BWB15 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Administrative Appeals Tribunal (“the Tribunal”). In that decision, the Tribunal affirmed a decision of the delegate not to grant the applicant a protection Class XA visa.
The applicant’s claims
The applicant is a citizen of Pakistan. He is a 35 year old Sunni Muslim of Pashtun ethnicity. He is married and has one child.
The applicant ran a business in Swat that provided educational services to men and women and employed men and women. In 2009, the applicant and his business partner were abducted by Tehrik-i-Taliban (“the TTP”) and beaten. The TTP told them that they were being punished for educating women and exposing students to western education. The applicant and his business partner were released upon the payment of a ransom. They continued their business.
In June 2013, the applicant came to Australia on a business visa at the invitation of some Australian course providers. While he was here, the applicant’s business partner sent him an email saying that the TTP had destroyed some of the business’s advertising and issued threats to the effect that the applicant and his family were on a TTP hit list.
The applicant’s business partner went into hiding and the applicant remained in Australia and lodged a protection visa application. His wife and child have remained in Pakistan.
The applicant has seen a psychologist, Ms Chetcuti, every month since November 2014. She has diagnosed the applicant with depression, anxiety, cervicogenic headaches, and symptoms of post traumatic stress disorder. She also said that the applicant had thoughts of suicide.
The delegate’s decision
The delegate accepted the applicant’s principal claims but not that the applicant might be targeted throughout Pakistan. The delegate considered that it would be reasonable for the applicant to relocate within Pakistan.
The Tribunal’s decision
The Tribunal also accepted the applicant’s principal claims, except that the TTP had a hit list, and also considered that it would be reasonable for the applicant to relocate with Pakistan.
The application
The applicant filed an application in this court on 10 September 2016, which was amended on 16 June 2016 and further amended on 15 November 2016. At the commencement of the hearing on 29 November 2016, the applicant withdrew all but two of the particulars to ground 1 and withdrew grounds 2 and 3. Consequently, particular (v) to the old ground 1 became ground 1, and particular (vi) to the old ground 1 became ground 2.
Ground 1
The first ground of review is:
The Second Respondent erred in finding that the Applicant could avoid harm in Pakistan by conducting business in a discrete manner.
This ground concerns the following sentence from paragraph 43 of the Tribunal’s reasons for decision:
I find that if he relocated he could carry on all aspects of his business in a manner that would not lead to him being targeted for harm by the TTP or anyone else. (emphasis added)
The applicant relied particularly on the words, “in a manner”, and said they indicated that the Tribunal made an error of the type described by the High Court in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs; Appellant S396/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; (2003) 78 ALD 8; (2003) 203 ALR 112; (2003) 78 ALJR 180; [2003] HCA 71. The applicant argued that the Tribunal must have meant that the applicant would be able to conduct his business in a limited way such that he would not attract adverse attention from the TTP.
The first respondent argued that the Tribunal had not made an error of the S395 type. The first respondent argued that it was necessary to read the Tribunal’s reasons for decision as a whole, and, in particular, to have regard to the whole of paragraph 43 of the Tribunal’s reasons for decision. That paragraph is as follows:
I have weighed the country information and I find that the applicant will not be targeted for harm in Lahore, Islamabad/Rawalpindi or other urban areas outside the KPK and Swat valley. This is because the country information indicates that the TTP is a loose network of groups, and I do not accept that the TTP, from the country information, has or shares ‘hit lists’ from different areas for people such as the applicant who are not military or authority targets. Country information indicates that terrorist attacks and other violence are not endemic in these identified urban areas, and Lahore in particular is identified as, despite the recent church bombings, having ‘largely escaped militant violence and is seen as a relatively peaceful city.’14 I do not accept that the applicant will be targeted either for his previous work as an educator and teacher of women as well as men, or employer of women teachers in the past in Swat, or if he sets up the same or a similar business in one of these urban areas, or, as the representative has claimed, for a combination of these factors. This is because the country information does not indicate that people running such business are targeted or attacked in parts of Pakistan outside the KPK and FATA. Businesses such as that run by the applicant in Swat are run in other parts of Pakistan,15 and country information indicates that, again outside KPK and the FATA, western and more ‘liberal’ attitudes to issues such as education are pervasive in Pakistan.16 I do not accept that the applicant would have to hide to avoid harm; I find that if he relocated he could carry on all aspects of his business in a manner that would not lead to him being targeted for harm by the TTP or anyone else.
14 BBC Asia, Deadly blasts hit Pakistan churches in Lahore, 15 March 2015, asia-31894708.
15 For example which has offices in Islamabad/Rawlpiandi, Lahore and other urban centres of Pakistan.
16 DFAT Pakistan Country Report: April 2015, 3.62 – 3.63.
It can be seen from that paragraph that the Tribunal said specifically:
I do not accept that the applicant would have to hide to avoid harm.
The Tribunal also said:
… if he relocated he could carry on all aspects of his business … (emphasis added).
The gravamen of paragraph 43 of the Tribunal’s reasons for decision was that, outside Swat and KPK and FATA, people running businesses like the applicant’s are not targeted and are not at risk.
Reading the Tribunal’s reasons as a whole, and particularly paragraph 43, I do not accept that the Tribunal meant that the applicant would need to restrict the conduct of his business in any way, if he relocated to one of the areas it nominated. It seems to me that the use of the words, “in a manner” was a poor choice of words. What the Tribunal clearly meant was:
I find that if he relocated he could carry on all aspects of his business without that leading to him being targeted for harm by the TTP or anyone else. (emphasis added)
The Tribunal did not make an error of the S395 type in this case. Ground 1 is not made out.
Ground 2
The second ground of review is:
The Second Respondent failed to consider the reasonableness of the Applicant[’]s relocation within Pakistan in light of his mental health issues and a lack of family support.
The applicant argued that the Tribunal conflated the question of whether the applicant would face persecution if he relocated within Pakistan with the question of whether it would be reasonable for him to relocate within Pakistan.
The Tribunal framed the issue about relocation at paragraph 36 of its reasons for decision as follows:
There remains the question of whether the applicant will face less than a real chance of serious harm by relocating to a different part of Pakistan. It is well settled that 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: Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at 440-1. Depending upon the circumstances of the particular case, it may be reasonable for a person to relocate in the country of nationality or former habitual residence to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution, and where 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. ‘Reasonable’ will depend upon the particular circumstances of the applicant and the impact of relocation upon that person within the person’s country. However, whether relocation is reasonable is not to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, political and socio-economic rights. The Convention is concerned with persecution in the defined sense, and not with living conditions in a broader sense. (footnotes omitted)
The Tribunal then set out the applicant’s claims in relation to whether he faced persecution in Lahore or Islamabad/Rawalpindi. The Tribunal then discussed, at paragraphs 43 to 46 of its reasons for decision, whether the applicant faced persecution in Lahore, Islamabad/Rawlapindi or other urban areas outside the KPK and the Swat valley, and concluded that he did not.
The Tribunal then said, at paragraph 47 of its reasons for decision:
… I will now consider if it is reasonable for the applicant to relocate to Lahore, Islamabad/Rawalpindi or another urban area outside KPK and the FATA.
In the ensuing 14 paragraphs, the Tribunal then set out the applicant’s claims relating to the reasonableness of relocation and the Tribunal’s consideration of them. Clearly, at least in the structure of its reasons, the Tribunal demonstrated that it was aware that the two questions were separate and it endeavoured to deal with them separately.
Nevertheless, the applicant said evidence of conflation was to be found in paragraphs 53 and 55 of the Tribunal’s reasons for decision where the Tribunal said:
53.… He said that he would rather finish himself here than face the TTP. He said he had a slight hope to resettle in Australia but otherwise he would consider finishing himself, as he had no other way. I explained that these comments caused me great concern, but that self-harm may not constitute serious or significant harm for the purposes of the assessments I must make. … (emphasis added)
…
55.… However, for the reasons above I do not accept that the applicant would be under threat/abuse of being harmed were he to relocate to Lahore, Islamabad/Rawalpindi or another urban area outside KPK and the FATA. … (emphasis added)
Paragraphs 53 and 55 of the Tribunal’s reasons for decision both appear under the heading, “Relocation”, and the subheading, “The applicant’s psychological health”.
The first respondent argued that the Tribunal’s comment, “self-harm may not constitute serious or significant harm”, was not a concluded view but a passing comment that did not figure in the Tribunal’s eventual reasoning process. I accept that argument. The Tribunal was at that point recording something it said during the hearing. The Tribunal, at that time, expressed some uncertainty about whether self-harm would fall within the definitions of serious or significant harm. However, it did not ultimately rely on a view that self-harm would or would not fall within the definitions of serious or significant harm.
Rather, the Tribunal considered that the applicant could and would access mental health services in Pakistan and, by implication, would not be at risk of self-harm. The Tribunal said at paragraphs 55 and 56 of its reasons for decision:
55.… Having considered the evidence of the applicant, Ms Chetcuti, the reports provided by the representative and the information set out above, I consider that there is a reasonable level of mental health services available to the applicant if he were to relocate to Lahore or another urban area, where services in general are more readily available. Whilst I am of the view that the applicant has access to considerable funds, and is not destitute as he claims, as discussed below, I note that he could access mental health services for free at PIMH [ie, the Punjab Institute of Mental Health].
56.… I find that he would have access to sufficient mental health services, and given he has accessed such services in Australia; I find that he would access them in Pakistan. …
The reason that the Tribunal said that the applicant would not be under “threat/abuse of being harmed” if he relocated was that Ms Chetcuti had given evidence that the applicant’s mental health treatment would not be effective if he were “under threat/abuse”. That is clear from paragraph 55 of the Tribunal’s reasons for decision, where the Tribunal said:
Ms Chetcuti gave evidence that she was concerned that counselling and other treatment for his symptoms would not be effective where he was under threat/abuse. However, for the reasons above I do not accept that the applicant would be under threat/abuse of being harmed were he to relocate to Lahore, Islamabad/Rawalpindi or another urban area outside KPK and the FATA. (emphasis added)
In other words, the Tribunal, in saying that the applicant would not be “under threat/abuse”, was responding to a specific argument put on the applicant’s behalf about why relocation would not be reasonable. The Tribunal was not conflating the question of whether the applicant would face persecution if he relocated with the question of whether relocation was reasonable. The Tribunal was simply saying that one of the grounds put forward for claiming that relocation would not be reasonable (because the applicant’s psychological counselling would not be effective if he were “under threat/abuse”) would not arise (because he would not be “under threat/abuse”). I do not accept that the Tribunal conflated the two questions as alleged by the applicant.
More generally, it is clear that the Tribunal considered at length the reasonableness of the applicant relocating in view of his mental health issues. That consideration occupied paragraphs 52 to 55 of the Tribunal’s reasons for decision.
In relation to the second aspect of this ground, the Tribunal expressly acknowledged in paragraph 56 of its reasons for decision that, if the applicant were to relocate within Pakistan, he may have no family support networks in Lahore or other urban areas. However, the Tribunal weighed up that circumstance along with various other aspects of the applicant’s particular circumstances in paragraphs 56 to 58 of its reasons for decision, which are as follows:
56.I find that the applicant can speak English, which is widely used in cities in Pakistan, and Pashto, which is spoken by Pashtun populations in all the major population centres of Pakistan. I find that he has built up and run a successful education business in Swat once, and then has re-established and built it up again after having been kidnapped. He has been able to work in Australia, an alien environment, and whilst suffering mental illness, as well as play cricket for his local club. I find that he would have access to sufficient mental health services, and given he has accessed such services in Australia; I find that he would access them in Pakistan. I accept that the applicant may have no family networks in Lahore or another urban area of Pakistan, but he has been able to work and play cricket in Australia where he is far less familiar with the environment. I find that the applicant has access to considerable property and capital as he stated to the delegate. This constitutes houses and land in and around Swat – I do not accept that his brother who lives in Parachinar could not assist him to rent or sell his properties, because I do not accept that this brother would face any chance of harm if he travelled to Swat to do this given the country information and my assessment that it is safe for people who have not been targeted by the TTP to travel there. I do not accept that the applicant having accessed financial assistance with Red Cross in Australia is evidence that he does not have funds in Pakistan. I find that the applicant, were he to return to Pakistan, would have access to considerable property and capital. (emphasis added)
57.I am mindful the applicant will face difficulties relocating to Lahore, finding work or starting another business and finding accommodation. I accept that 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. I do not accept that the fact that he is a Pashtun from his home region means that he will be discriminated against in terms of accommodation or employment in Lahore or another area, given the country information that there are Pashtun populations in all of the States of Pakistan and that there is a large diaspora of Pashtuns from Swat and the KPK. The applicant has shown himself to be resourceful in overcoming his mental illnesses, living apart from his family in order to travel overseas and to come to Australia and find employment.
58.I consider on weighing the information before me that the applicant will be able to relocate safely and reasonably to Lahore, Islamabad/Rawalpindi or another urban area outside KPK and the FATA, and have sufficient funds to be able to pay for accommodation, start another business or seek employment.
From these passages, it is clear that the Tribunal did consider the reasonableness of the applicant relocating, in view of his lack of family support. The Tribunal was able to give such weight to the applicant’s lack of family support as it saw fit, subject to legal unreasonableness. That was not alleged in this case, probably for good reason. It is also clear from the Tribunal’s findings that the applicant would have had some indirect family support in that his brother could have liquidated the applicant’s substantial assets on the applicant’s behalf.
The applicant took issue with the Tribunal’s finding that the applicant had displayed resourcefulness. In that regard, the applicant noted the comment of Judge Driver of this court in MZACX v Minister for Immigration and Border Protection [2015] FCCA 681 at [82] that:
If the mere fact of journeying from one’s home country to Australia (even in difficult circumstances) was sufficient to demonstrate skills necessary to relocate internally in that country of origin, then the Tribunal would have an easy task. More is required.
That decision was overturned on appeal, in MZACX v Minister for Immigration and Border Protection [2016] FCA 1212. In any event, Judge Driver noted in MZACX at [82]:
The Tribunal’s reference to resourcefulness in relation to his travel to Australia might seem misplaced in circumstances where he travelled with family and friends who died on the voyage to Australia and where the applicant himself would also have died had he not have been rescued by the Australian Navy. From the point of rescue onwards, the applicant has had no need or opportunity to demonstrate any resourcefulness. Whether it was he or others who arranged for the subsistence of the group or individuals within it in Indonesia is a matter of conjecture.
On appeal, Kenny J said at [62] to [64]:
62.The Tribunal’s finding that the appellant was capable, flexible and resourceful was groundless, when account is taken of the information before the Tribunal about the circumstances surrounding the appellant’s departure from Pakistan and arrival in Australia. This information may have supported a finding that the appellant was desperate to flee Pakistan, although only in the company of relatives; and that he may have been naïve or ill-informed about the risks involved in such a trip. The Tribunal did not otherwise address the appellant’s claim that relocation to Islamabad or Rawalpindi was not reasonable, in the sense of practicable, in the absence of a support network of family or friends.
63.It may be accepted that the reasons of the Tribunal are not to be scrutinised with an over-zealous eye for error and that it is not necessary for the Tribunal to refer in its written reasons to every item of evidence and every contention made by a visa applicant … . Nonetheless, the Tribunal’s reasons must enable the identification of the reasons that the Tribunal had for reaching its conclusion, and the findings that the Tribunal made in reaching the conclusion it did … . Considering the various matters raised by the appellant both individually and in combination, I conclude that the Tribunal failed to perform the task mandated by s 65 of the Migration Act, in that it did not make a determination regarding the relevant state of satisfaction based on findings or inferences of fact that were grounded upon probative material and logical grounds.
64.Another way of identifying jurisdictional error in the Tribunal’s decision can be seen in the Tribunal’s failure to address all of the appellant’s claims, including significant integers arising clearly on the material before the Tribunal … . Thus, the Tribunal’s statement that the appellant had shown “capability and flexibility” did not engage with the actual circumstances of the appellant and did not address the appellant’s claim that, without a support network of family and friends, relocation to Islamabad or Rawalpindi would not be reasonable since this network was important for employment opportunities. Since the finding about his resourcefulness, capability and flexibility was critical to the Tribunal’s conclusion that it would be reasonable for him to relocate to either of these cities, it follows that the Tribunal did not fulfil its statutory task and exceeded its jurisdiction.
The applicant in the present case was in a very different position to the applicant in MZACX. The Tribunal found that the applicant in the present case:
a)speaks English;
b)built up and ran a successful education business in Swat;
c)after he was kidnapped, built the business up again and ran it;
d)had travelled overseas for business trips and holidays;
e)had worked in Australia;
f)had played cricket with a local club in Australia;
g)had obtained the long-term assistance of a psychologist in Australia; and
h)has houses and land in and around Swat which comprise “considerable property and capital”.
Consequently, it cannot be said in the present case that the Tribunal looked only at the mere fact that the applicant had journeyed to Australia. I do not accept that the Tribunal in the present case made an error of the type identified in MZACX.
The applicant also relied on SZIED v Minister for Immigration and Citizenship [2007] FCA 1347 where Judge Moore said at [49] to [52]:
49.What emerges from the evidence given by the appellant at the Tribunal hearing is the following. The farm was still owned by the appellant's father and producing coffee and some sporadic harvesting still took place. His father was paying a farm worker to keep an eye on the farm. If the appellant returned to Colombia, he would feel compelled to return to the farm because it belonged to his family and farm work was the only kind of work he had done in Colombia. His family's income was also partly derived from the farm.
50.In its reasons, the Tribunal recounted that the applicant had claimed that if he returned Colombia he would effectively feel compelled to return to the farm and be a coffee grower. That is a clear and unambiguous import of the evidence set out earlier. In response to this, the Tribunal said, in the reasons, “I do not accept the applicant's claim in this regard”. In support of this conclusion, the Tribunal pointed out that the applicant had been prepared to live in Australia without contact with his farm and he could likewise live in Colombia without contact. It then pointed to work he had done in Australia (construction and cleaning) and that his wife had worked as a trade beauty therapist.
51.However what the Tribunal has done, in my opinion, is to provide bare logical alternatives to what the appellant indicated he would do without testing whether the logical alternatives, in the face of the appellant’s asserted wish to return to the farm, were reasonable. The question of whether an asylum seeker, who claims of having been persecuted have been accepted, will be compelled to act in a particular way because of family obligations, is not answered by pointing to conduct plainly arising from his earlier persecution. That is, it was not open to the Tribunal to reject the appellant’s claim that he would feel compelled to return to the family farm if he were to return to Colombia, by pointing to the fact that he abandoned the farm by fleeing to Australia. His fleeing to Australia was to escape persecution. The Tribunal did not give any real consideration to the specific impediment raised by the appellant, namely that he would feel compelled to return to work on the family farm.
52 On one view, the Tribunal's conclusion that it “did not accept the [appellant’s] claim in this regard” was no more than a finding of fact. That was the approach of the Federal Magistrate. But in substance, it was significantly more. It was not a finding about past events but a conclusion that it would be reasonable to expect the appellant to relocate within Colombia without given any real consideration to the specific issue he had raised. An assessment of whether it was reasonable in the circumstances to expect the appellant to relocate could not be made by merely pointing to the fact that the appellant had not been on the farm for some years because he is in Australia and had not been doing farm work whilst in Australia. The test propounded by Black CJ in Randhawa requires that the evaluation be proper, realistic and fair and all the circumstances be taken into account. In my opinion, the Tribunal misunderstood the content of the principle propounded in Randhawa, did not apply it and thereby fell into jurisdictional error.
The applicant argued that the Tribunal fell into the same type of error in the present case when it said, in paragraph 57 of its reasons for decision:
… The applicant has shown himself to be resourceful in overcoming his mental illnesses, living apart from his family in order to travel overseas and to come to Australia and find employment.
The applicant argued that the Tribunal had sought to conclude that the applicant would be able to withstand a lack of family support by pointing to his working, playing cricket, overcoming his mental illness, and living apart from his family in order to travel overseas and come to Australia. The applicant argued that those circumstances arose from his need to flee Pakistan, and could not rationally support the conclusion that a lack of family support is no barrier to relocation.
That submission misunderstands SZIED. That case did not say that the Tribunal cannot look at the applicant’s circumstances since fleeing his country of origin to assess his resourcefulness or the reasonableness of relocation generally. It said at [51]:
… it was not open to the Tribunal to reject the appellant's claim that he would feel compelled to return to the family farm if he were to return to Colombia, by pointing to the fact that he abandoned the farm by fleeing to Australia. His fleeing to Australia was to escape persecution. The Tribunal did not give any real consideration to the specific impediment raised by the appellant, namely that he would feel compelled to return to work on the family farm.
An equivalent claim in the present case would have been that the applicant would have felt compelled to return to Swat to re-establish his business. The applicant made no such claim.
In the present case, the Tribunal was entitled to look at all of the applicant’s circumstances to assess whether the applicant could reasonably relocate within Pakistan. The Tribunal was entitled to take into consideration how the applicant had conducted himself since arriving in Australia, as well as his language skills, his business skills, his considerable property and capital and so on. The applicant’s lack of family support was a factor that the Tribunal clearly took into account but considered was outweighed by other factors. This ground is not made out.
Conclusion
As neither of the applicant’s grounds has been made out, the application must be dismissed with costs.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Riley
Associate:
Date: 30 January 2017
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