BXC15 v Minister for Immigration

[2017] FCCA 51

FEDERAL CIRCUIT COURT OF AUSTRALIA

BXC15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 51

Catchwords:
MIGRATION – Application for judicial review – protection (Class XA) visa – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Applicant: BXC15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2134 of 2015

Judgment of: Judge Riethmuller

Hearing date: 15 December 2016

Date of Last Submission: 15 December 2016

Delivered at: Melbourne

Delivered on: 2 February 2017

REPRESENTATION

Counsel for the Applicant: Mr Wood

Solicitors for the Applicant: Fragomen

Counsel for the First Respondent: Mr Brown

Solicitors for the First Respondent: DLA Piper

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2134 of 2015

BXC15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant in this matter seeks judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) made on 24 August 2015, dismissing his application for review of a delegate’s decision not to grant him a Protection (Class XA) visa.

2. The applicant is a citizen of Pakistan who came to Australia as an unauthorised maritime arrival in 2012.  The applicant has been on a bridging visa pending determination of his claims.

3. The Tribunal accepted that as a Turi tribe member (a sub-group of the Pashtun Shia Muslims) the applicant was subject to a real chance of serious harm if he were to be return to Parachinar (see paragraph [36] of the decision.)

4. As a result of the Tribunal accepting that the applicant was at real risk of harm in Parachinar, the key issue in the decision was whether or not it was reasonable for the applicant to relocate within Pakistan.  The Tribunal concluded that it was open to the applicant to relocate to Lahore.  In making this finding, the Tribunal considered whether or not the applicant would be at risk in Lahore, and also whether or not it was reasonable in the sense of being practicable for him to relocate to Lahore.

5. The grounds of judicial review relied upon by the applicant in his amended application are as follows:

   1. The Tribunal constructively failed to exercise its jurisdiction, or failed to carry out its statutory task, by failing to lawfully consider (including by giving proper, genuine and realistic consideration to the merits of) a claim made by the applicant or, alternatively, critical evidence provided by the applicant in support of a claim.

   Particulars

   (a) The applicant made a claim to fear harm from the Taliban throughout Pakistan on the basis that he was a member of the Turi tribe from Parachinar. That claim was distinct from the applicant’s claim to fear harm on the basis that he was a Shia.

   (b) Without limiting particular (a), the applicant made claims to the following effect: (i) Turis are viewed as a distinct enemy of the Taliban, and are specifically targeted by the Taliban; (ii) the Taliban have declared that all Parachinar Shia should be handed over and killed.; (iii) Shias outside Parachinar would be unwilling to protect him because he is a Turi.

   (c) Further, there was independent country information that corroborated the applicant’s claims. In particular, there was independent country information, accepted and relied on by the Tribunal in a previous decision on 14 January 2015, to the effect that: (i) “the Turi are unique in that they are the only Pashtun tribe that is almost exclusively Shia”; (ii) “the tribe has been involved in a long conflict with the Taliban on account of their lands occupying important strategic passes between Afghanistan and Pakistan”; and (iii) “Turi Shi’a are a special case” compared to other Shias.

   (d) The Tribunal accepted that the applicant would be accepted throughout Pakistan as a Turi Shia from Parachinar. The Tribunal purported not to accept that Turis are targeted specifically by the Taliban, or that they are a “special case” compared to other Shias. However, the Tribunal gave no reasons for this conclusion.

   (e) In particular, the Taliban gave no reasons why it did not accept (if it even purported to consider) the applicant’s claims that: (i) Turis are viewed as a distinct enemy of the Taliban; (ii) the Taliban have declared that all Parachinar should be handed over and killed; or (iii) Shias outside Parachinar would be unwilling to protect the applicant because he is a Turi. Further, the Tribunal gave no reasons for why it did not accept (if it even purported to consider) the accuracy of the independent country information identified in particular (c) above

   (f) The absence of reasoning gives rise to an inference that the Tribunal failed to exercise its jurisdiction, or failed to carry out its statutory task, by failing to lawfully consider (including by giving proper, genuine and realistic consideration to the merits of) a claim made by the applicant or, alternatively, critical evidence provided by the applicant in support of a claim

6. As can be seen from the particulars, the central theme of the applicant’s case was that members of the Turi tribe from Parachinar are particularly at risk from the Taliban.  Added to this is the proposition that other Shia would not be prepared to assist members of the Turi tribe, even though they are themselves Shia.  To the extent that these claims bore on the question of whether or not the applicant was at risk of harm in his home region, it is not in dispute in these proceedings as the Tribunal found in favour of the applicant when it accepted that he would face real a chance of serious harm.  In making this finding, the Tribunal did not specifically identify that Turi’s were specifically at greater risks than other Shia from that particular area, accepting that Shia from that area were generally at risk for the reasons set out in the proceeding paragraphs.

7. However, when turning to consider the practicality of relocation and the risks that the applicant may face if he relocated to Lahore, the Tribunal carefully identified not only that the applicant was from the Turi tribe, but the ways in which he may be able to be identified as such, stating:

   47. Based on DFAT report information that Pakistani Shias are not physically, (apart from Hazaras) linguistically or legally distinguishable, the tribunal does not accept the applicant is distinguishable from his appearance. While the applicant claimed his accent is different as well, in the absence of country information confirming a difference the tribunal is not satisfied the applicant is distinguishable by his accent.  However, the Tribunal 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 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. His family name is listed in the DFAT Shia report as a common Shia name. Further he would be identifiable in attending Shia mosques.

   48. The Tribunal accepts that the applicant would be identified throughout Pakistan as a Turi Shia from Parachinar. The Tribunal accepts that as a Turi Shia from Parachinar, Kurram Agency, the applicant will be imputed with a political opinion that is opposed to the Taliban and other Sunni extremists.

   [Footnotes omitted]

8. The Tribunal had clearly identified the applicant’s claims that there was a view of the Taliban that Turi are distinct enemies of the Taliban (see paragraph [42]) and his claim that he would be targeted in Lahore on the basis of religion and ethnicity (see paragraph [43]).

9. The Tribunal member referred to a paper issued by the Immigration and Review Board of Canada in January 2014, which said in part:

   The representative of the HRCP, while corroborating that there have been targeted killings against Shia in Lahore and Multan, expressed the opinion that the problem is not “severe” for Shia in these cities (HRCP 13 Dec. 2013). Similarly, the PhD candidate described Lahore and Multan as "relatively more educated cities" and said that they do not have the same level of "sectarian violence or hatred" as other "remote" areas of Pakistan (PhD Candidate 11 Dec. 2013). He expressed the opinion that while there may be "sectarian tensions'' in Lahore and Multan, that sectarian violence and extremism is not part of the beliefs of mainstream society in these cities (ibid.).

   [Footnotes omitted]

10. The Tribunal went on to specifically examine the extent to which there was violence in Lahore, saying:

    56. Further, it is evident from SATP statistics comparing fatalities and major terrorism or sectarian incidents over the years in various areas in Pakistan that attacks on Shias have significantly reduced and are very sporadic in Lahore.  Further, there is a sizable Shia population in Lahore and state protection is more available and Taliban or other militant Sunni activities are less prevalent in Lahore.  For instance, while there were a few sectarian attacks in 2011 in Lahore, this has declined significantly in recent years, with two sectarian attached in 2013 (an ophthalmologist and Shia leader) and one in 2012 (Shia lawyer). While in 205 there have been fatal incidents in Lahore, these were on Christians in March 2015 and police.

    57. For instance, in 2015 to August, 186 Shias were killed and 190 were injured but none of these were in Lahore.  By far the majority of these incidents were in FATA, Balochistan or Karachi, with some on Peshawar.

    [Footnotes omitted]

11. This led to the Tribunal reaching the conclusions at [64] and [65] of the reasons as follows:

    64. Given the relatively low levels of sectarian violence in Lahore, and the applicant's lack of a particular profile with the Taliban or any of its associated extremist groups, combined with the large number of Shia Muslims in Pakistan and in urban areas, including Lahore, DFAT's assessment that Lahore remains relatively free from the threat of militant, sectarian and politically motivated violence the Tribunal is satisfied that the chance of the applicant being harmed in an act of targeted sectarian or generalised violence in Lahore is remote. The Tribunal is also not satisfied that the applicant will have to modify his religious practise in order to avoid the harm he fears.

    65. The Tribunal finds that 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 chance.

12. The Tribunal clearly had in mind that Turi’s may be a special case, at least on the submissions made, saying at paragraph [69]:

    69. The Tribunal has had regard to the submissions about Turis being a special case in other RRT decisions and unable to relocate. The Tribunal is not bound by the decisions and it does not, therefore, alter the Tribunal's findings as set out above. The Tribunal has given careful consideration to the evidence and has found above that there is not a real chance of the occurrence of the persecution that the applicant fears in Lahore.  ·

13. I turn then to each of the particulars raised by the applicant.

Particular (a)

1. Particular (a) makes the claim that the Tribunal failed to consider the applicant’s claim on the distinctive basis that he was from the Turi tribe, rather than simply as a Shia.  This claim cannot be sustained given the extensive reasons that the Tribunal sets out, discussing the distinctiveness of the applicant of a Turi Shia from Parachinar, as quoted above.  To the extent that the argument is developed that the distinction between Turi Shia and Shia generally was lost by the time that the Tribunal considered the possibility of persecution in Lahore, a fair reading of the decision shows that this was only because there was no evidence specifically dealing with Turi Shia in Lahore, only Shia generally.

2. On the evidence before the Tribunal, there were no attacks on Shia generally in the last two years in Lahore (see paragraphs [86] and [57]). The Tribunal did have evidence that Turi Shia’s are not discriminated against in government positions, police, military or the private sector in Lahore (see paragraph [83].) In light of the evidence before the Tribunal that Shia’s generally were safe in Lahore, and that there was no evidence that Turi’s were treated differently, it does not appear to me that the Tribunal’s reasons should be read as having failed to consider the applicant’s claim as a member of the Turi tribe, distinctly from a general claim based on being a Shia in Lahore.

Particular (b)

1. The second particular (b) relates to the claims that the Turi specifically and the Parachinar Shia generally are specifically targeted by the Taliban who have said that they should be handed over to the Taliban.  Again, on the evidence with respect to Lahore, there is no indication that there is a real threat to either Shia’s generally or Turi’s in Lahore on the country information relied upon by the Tribunal.

Particular (c)

1. The third particular, paragraph (c), relies upon the fact that there was country information with respect to persecution of the Turi people by the Taliban and that Turi Shia are “a special case.”  It is clear that the Tribunal accepted the applicant’s claims of risk in his own area, and to the extent that the Tribunal did not descend to distinguishing between Turi and Shia in this regard, it could not be said that the Tribunal was at error, as it found for the applicant in this respect. 

2. As set out with respect to the previous two particulars, the difficulty confronting the Tribunal when it turned to consider the applicant’s safety in Lahore was that there was no information distinguishing sects of the Shia community, but the country information showed that no Shia had been attacked in recent times in Lahore.  In light of this, it must rationally be open to the Tribunal to conclude that Turi are not at risk in Lahore.

Particulars (d) and (e)

1. Paragraphs (d) and (e) read into the Tribunal’s decision that it did not accept that Turi Shia may be in a different position to Shia generally.  To the extent that the case concerned an area where there was evidence of a distinction (beyond the subjective fears of the applicant), this ground may have had some merit.  In the areas where there was evidence that Turis may be treated different to Shia generally, the Tribunal accepted the applicant’s claim that he was at risk.  There was no evidence  that in Lahore any Shia, regardless of sector tribe, was at real risk.

Particular (f)

1. The final particular, (f), alleges that the Tribunal failed to give genuine and realistic consideration to the merits of the claim by the applicant, or critical evidence provided by the applicant in support of the claim.  For the reasons set out above I am not persuaded that the Tribunal failed to do so.  It considered the circumstances of the applicant in detail, including his Turi ethnicity.  The fundamental difficulty faced by the applicant in this case was the country information referred to in paragraphs [57] and [86] (set out above) which indicated that there had been no attacks on Shia in Lahore, a much larger group than simply Turi’s.  If there were no attacks upon Shia in Lahore, it is implicit that there were no attacks upon Turi as they form a part of the Shia group.

2. In these circumstances, I therefore find that the applicant has not established a ground for judicial review and dismiss the application.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  2 February 2017