BXN16 v Minister for Immigration
[2019] FCCA 2820
•24 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BXN16 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2820 |
| Catchwords: PRACTICE AND PROCEDURE – where applicant seeks to raise grounds of review having submitted that it was unnecessary to make submissions to Tribunal on relevant aspect of test for internal relocation – whether having made such submission, applicant should be permitted to advance ground of judicial review – whether applicant should be granted leave to amend application for judicial review so as to raise ground not raised below – applicable principles – whether expedient and in interests of justice to allow amendment – where merit of the proposed ground is an important consideration – relevance of forensic decision not to make submissions where matter is remitted – application refused. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r 7.01 Migration Act 1958 (Cth), ss 36, 65, 91R, 430, 474, 476 |
| Cases cited: AHK16 v Minister for Immigration and Border Protection [2018] FCAFC 106 AIE15 v Minister for Immigration and Border Protection [2018] FCA 610 Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 BHB16 v Minister for Immigration and Border Protection[2018] FCAFC 42 BLX16 v Minister for Immigration and Border Protection [2019] FCAFC 176 BMR17 v Minister for Immigration [2018] FCA 1250 BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94 CDW18 v Minister for Home Affairs [2019] FCA 270 CED15 v Minister for Immigration and Border Protection [2018] FCA 451 CID15 v Minister for Immigration and Border Protection [2017] FCA 780 Coulton v Holcombe (1986) 162 CLR 1 CRI026 v The Republic of Nauru [2018] HCA 19 CRI028 v The Republic of Nauru [2018] HCA 24 CSO15 v Minister for Immigration and Border Protection[2018] FCAFC 14 DAK16 v Minister for Immigration and Border Protection [2019] FCA 683 DAO16 v Minister for Immigration and Border Protection (2018) 353 ALR 641 DWN027 v The Republic of Nauru [2018] HCA 20 Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317 Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67 Minister for Immigration and Citizenship v MZYZA [2013] FCA 572 Minister for Immigration and Citizenship v SZMDS (2010) 240 CRL 611 Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 MZAEU v Minister for Immigration and Border Protection [2016] FCAFC 100 MZANX v Minister for Immigration and Border Protection [2017] FCA 307 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 Nguyen v Minister for Home Affairs [2019] FCAFC 128 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405 SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109 SZGHS v Minister for Immigration and Citizenship [2007] FCA 1572 SZUAL v Minister for Immigration & Anor [2016] FCCA 347 WET052 v The Republic of Nauru [2018] HCA 47 |
| Applicant: | BXN16 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 323 of 2016 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 17 September 2019 |
| Date of Last Submission: | 7 October 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 24 October 2019 |
REPRESENTATION
| Counsel for the Applicant: | Dr A. McBeth |
| Solicitors for the Applicant: | Clothier Anderson Immigration Lawyers |
| Counsel for the Respondents: | Ms A. Staker |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The application for leave to amend the application for judicial review so as to add proposed Ground 4 be refused.
The decision of the second respondent made on 28 June 2016 be quashed.
The matter be remitted to the second respondent to be reconsidered according to law.
The first respondent pay the costs of the applicant fixed at $3,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
PEG 323 of 2016
| BXN16 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By further amended application dated 4 September 2019, the applicant seeks judicial review of a decision of the Administrative Appeal Tribunal (Tribunal) made on 28 June 2016 affirming a decision of a delegate of the first respondent (Minister) refusing to grant him a Protection visa pursuant to s 65 of the Migration Act 1958 (Cth) (Act).
For the reasons which follow I have concluded that the application should be allowed. In summary, I have concluded that the decision was affected by jurisdictional error by reason that, although the Tribunal correctly identified the test for internal relocation, it did not apply that test. The Tribunal did not adopt a forward looking approach in evaluating whether the applicant could reasonably expect to face harm in the future, nor did it take into account information that was before it in undertaking that assessment. The other grounds of review have been rejected and leave to further amend the application refused.
Background
The background facts and history of the application were not in dispute. The applicant, a male Pakistani citizen aged 26 years, first came to Australia on 2 October 2012 holding a Student visa which expired on 17 March 2013. The applicant is of Pasthun ethnicity and Sunni Muslim faith. He was born in the Swat district of Pakistan.
Claims to protection
On 20 September 2013, the applicant lodged an application for a Protection (Class XA) visa. By written statement attached to his application, the applicant made the following claims in his application for protection:
a)he was born in Kawdary, Swat district, Pakistan;
b)in 2008, the applicant’s family was targeted by the Taliban because his father was vice president of the Awami National Party (ANP) in the Qalaqai area of the Swat District;
c)in 2008, the applicant’s father received a letter from the Taliban warning him to discontinue his role with the ANP;
d)after receiving the letter, in separate incidents, the applicant’s father was beaten by the commander of the local Taliban and later shot at and ambushed on his way to a local bazar;
e)his father, who had worked in fashion in Saudi Arabia, died of a heart attack in 2008;
f)after finishing high school, the applicant became involved with the Amman Lashkar and was appointed secretary general of the local branch of the ANP in his area;
g)in about October 2011, the applicant also received a letter from the Taliban that threatened to target him in the same way as his father had been;
h)the applicant subsequently received threatening phone calls, and in June 2012 he was shot at whilst walking in his village with two other members of the ANP; and
i)he fears harm if he returns to Pakistan because the Taliban are networked throughout the country and the authorities are unable to protect him.
Attached to the applicant’s declaration were a series of documents, together with translations, said to be the letters containing the threats from the Taliban that had been made.
Delegate’s decision
On 11 March 2015, a delegate of the Minister refused to grant the application and gave reasons for so doing. The delegate accepted some of the applicant’s claims, but also had concerns in relation to others. In particular, the delegate was not satisfied that the applicant had served as secretary general of the local ANP branch or that he had been fired upon by the Taliban as claimed. The delegate also held concerns as to the applicant’s overall credibility by reason of the delay in lodging the application.
The delegate was satisfied of the applicant’s claim to fear harm on the ground of his political opinion, which was accepted as constituting serious harm and systemic and discriminatory conduct such as to amount to persecution within the meaning of s 91R(1)(b)-(c) of the Act.
The delegate then examined whether the applicant’s fear was well founded. The delegate accepted the applicant’s claims in relation to his former membership of the Defence Committee in his local village, Amman Lashkar and the ANP. The delegate also accepted that the applicant’s father had been vice president of the local branch of the ANP.
The delegate then examined the nature of the threat posed by the Taliban. The delegate considered that the risk of harm from the Taliban depended upon the profile of the particular visa applicant, the nature of the threat and how far it extended. The delegate examined country information in detail and found it to be clear that the focus of Taliban attacks had been on ANP leaders, as distinct from rank and file members.
Nonetheless, the delegate acknowledged that some rank and file members had also been killed. While expressing certain reservations as to the extent of the risk of serious harm faced by the applicant, the delegate found that he would be at risk of serious harm in the Swat district due to his ANP membership and that the applicant would not be able to seek adequate protection from Pakistani authorities.
The delegate examined the question of relocation in some detail, including by reference to the test as stated in SZATV v Minister for Immigration and Citizenship.[1] The delegate had regard to the applicant’s written statement that he could not relocate to another part of Pakistan on the basis that the Taliban was networked throughout Pakistan and continued to target people, even if they moved away. The delegate considered the applicant’s statements that he did not have relatives outside his home area of Pakistan and that if he was to relocate to another area, he would not have any family support or employment prospects. The delegate also considered the applicant’s statements made in the course of his interviews as to why he could not relocate.
[1] (2007) 233 CLR 18, [23]-[24].
The delegate recognised that there were few legal obstacles to internal relocation within Pakistan. Further, the delegate concluded that the applicant would not be sought by the Taliban throughout Pakistan simply due to his former membership of a Defence Committee. In doing so, the delegate had regard to DFAT country information which observed that internal relocation offered a degree of anonymity and the opportunity to seek refuge from discrimination or violence by reason of Pakistan’s size and diversity. The delegate also had regard to a report, 2014 UK Home Office ‘Country Information and Guidance Pakistan Taliban’ (2014 UK report) that “persons perceived to be collaborating with Pakistani authorities or otherwise acting against the Taliban or other militant groups may be able to relocate to an area where that localised threat does not exist.”
The delegate concluded that having regard to the high numbers of displaced persons within Pakistan, and in particular those from the applicant’s home region, the applicant would not stand out in a large city any more than the thousands of other displaced persons from Federally Administered Tribal Areas (FATA) and Khyber Pakhtunkhwa (KPK).
Notably, the delegate relied on country information including that DFAT considered the current security situation in Islamabad and Lahore to be relatively free from politically motivated terrorism and sectarian violence. The delegate observed that the applicant could enter Pakistan through the international airport in Islamabad and further that the applicant had previously lived away from home, having established himself in Australia since 2012 where he had held various employment positions. The delegate also had regard to the applicant’s educational achievements and concluded that it was reasonable for the applicant to relocate to another part of Pakistan.
Having considered whether the applicant could relocate to an area in Pakistan where he would not have a real chance of being persecuted for a Refugee Convention reason and whether it was reasonable, in the sense of practicable, for him to safely relocate. The delegate concluded that:
. . . the applicant’s profile as a village defence committee/Amman Lashkar member and ANP member represents a localised threat only and that the applicant’s risk of serious harm would be significantly reduced if he were to relocate to another region within Pakistan.
Given the circumstances of the applicant and the available country information, I find that it would be reasonable for the applicant to consider relocation to a city such as Islamabad where I find he would face a remote rather than a real chance of persecution. I am satisfied the applicant can safely access a relocation option within Pakistan.
For those reasons, the delegate was not satisfied the applicant had a real chance of being persecuted for a Refugees Convention reason and was therefore not satisfied that his stated fear was well-founded.
The delegate concluded that the applicant was not a person in respect of whom Australia owed protection obligations, either as a refugee under s 36(2)(a) or by way of complementary protection under s 36(2)(aa).
Tribunal’s decision
On 8 April 2015, the applicant applied to the Tribunal for a review of the delegate’s decision. On 17 June 2015, the applicant appointed a migration agent to act on his behalf. On 8 March 2016, the Tribunal invited the applicant to a hearing to give evidence and present arguments relating to the issues arising on the decision under review.
On 30 March 2016,[2] the applicant’s migration agent lodged a detailed submission which addressed, in detail, the question of relocation at [42]-[70]. First, it was submitted that the Tribunal should find that the Islamabad Capital Territory was not a region of Pakistan where there was no appreciable risk of the applicant’s feared harm. Secondly, it was submitted that in those circumstances it was not necessary to consider whether it was reasonable, in the sense of practicable, to expect the applicant to be sent to another region.[3] The first of those submissions is relevant to Grounds 1 and 2 while the second is relevant to Grounds 3 and proposed Ground 4 and is considered further below.
[2]The submission is dated 30 March 2015, however, it appears to have been transmitted by email on 30 March 2016.
[3] Applicant’s submissions 30 March 2015 (sic) at [70].
On 31 March 2016, the applicant attended a hearing before the Tribunal, doing so with the assistance of his migration agent.
On 29 June 2016, the Tribunal notified the applicant’s migration agent of a decision made on 28 June 2016 to affirm the delegate’s decision. The Tribunal provided a statement of its reasons for doing so (Reasons).
The Reasons provided a statement of the background to the application including the applicant’s claims for protection, the delegate’s decision, the application for review and of the matters which transpired in the course of the Tribunal hearing: [1]-[40]. No criticism was made of these aspects of the Reasons.
The Tribunal identified and provided by way of annexure a statement of the independent country information that had been before it: Reasons, [41], [117]-[127]. The Tribunal’s consideration of country information is of particular relevance to proposed Ground 4.
The Tribunal then provided a statement of the relevant law: Reasons, [42]-[59]. Again, no criticism of that statement was made.
In its consideration of the applicant’s claims and evidence, the Tribunal found that the applicant would face a real chance of serious harm now or in the reasonably foreseeable future if he returned to the Kawdary area, or to the Swat or KPK generally. The Tribunal was not satisfied that the applicant would be able to avail himself of police protection in the KPK: Reasons, [69]-[70]. For those reasons, the Tribunal proceeded to address the question of relocation, which it did in detail: Reasons, [71]-[110]. I address those issues below.
The Tribunal ultimately found that it was reasonable for the applicant to relocate to Lahore or another urban area outside KPK and the FATA: Reasons, [109]. Accordingly, it concluded that the applicant was not a person to whom Australia owed protection obligations, and affirmed the decision to refuse to grant the visa: Reasons, [110], [114].
Procedural history
On 21 July 2016, the applicant filed an application in the Perth Registry of this court seeking judicial review of the Tribunal’s decision together with an affidavit to which he exhibited a copy of the Reasons. His affidavit adduced no further evidence in support of the application.
By a Response filed on 4 August 2016, the Minister opposed the application on the stated basis that the decision under review was not affected by jurisdictional error.
On 27 February 2018, orders were made transferring the matter to the Melbourne Registry of this court.
On 27 August 2019, the applicant filed an amended application.
On 4 September 2019, the applicant filed a proposed further amended application together with an affidavit deposed by his representative to which was exhibited certain country information. The affidavit and exhibits were relied upon in relation to a proposed further ground of review; namely, that the Tribunal had failed to consider the current country information in its determination of the question of relocation.
Consideration
The present application arises in the context that if the Tribunal’s decision was a privative clause decision[4], it is not amenable to judicial review. A Tribunal decision respecting the merits review of a visa application is not amenable to judicial review unless it is shown to be vitiated by jurisdictional error.[5] Absent jurisdictional error, the court has no jurisdiction to grant relief in respect of the Tribunal’s decision.[6]
[4] Act, s 474(2).
[5]Act, s 474(1)(c), 476(2)(b); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, [76] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).
[6] Act, s 476(2).
The applicant advanced four grounds of review, submitting that each ground was directed to error in the Tribunal’s finding that the applicant could reasonably relocate. The applicable principles were not in dispute.
In the context of complementary protection, the internal relocation principle is expressly prescribed by s 36(2B)(a) of the Act and provides that an applicant is not eligible for a protection visa under s 36(2B)(a) of the Act where “it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm.”[7] Similarly, the reasonable relocation test under the Refugee Convention applied for the purpose of s 36(2)(a) of the Act.[8]
[7] See CID15 v Minister for Immigration and Border Protection [2017] FCA 780, [37].
[8] Cf DAK16 v Minister for Immigration and Border Protection [2019] FCA 683, [18].
In Minister for Immigration and Border Protection v SZSCA,[9] the plurality described the internal relocation principle as being well-established. French CJ, Hayne, Kiefel and Keane JJ stated:
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. The connection of the principle to the definition of a refugee in the Convention, and the conditions for the principle’s application, were explained by this Court in SZATV. In that case the Tribunal refused to grant a protection visa because it determined that the visa applicant, a Ukrainian journalist who had suffered persecution for his political opinions, could relocate to another region of Ukraine, even though he might not be able to continue to work there as a journalist. The Tribunal failed to consider what might reasonably be expected of the applicant with respect to relocation, which this Court held was an error of law.
[9] (2014) 254 CLR 317, [21] (footnotes omitted).
In CRI028 v Republic of Nauru,[10] Gordon and Bell JJ examined the principles of internal relocation and stated:[11]
. . . , the assessment of whether a person can relocate is not answered only by reference to the risk of harm. The assessment also requires consideration of the individual circumstances of the person, and what is practicable and reasonable for that person. As this Court said in SZATV v Minister for Immigration and Citizenship, ‘[w]hat 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’. The practical realities must be carefully considered. And, as will be explained, the particular circumstances may include the person's family situation.
As their Honours emphasised,[12] the need to focus on whether a person could reasonably be expected to relocate to a particular location requires consideration of the applicant’s particular circumstances.
[10] [2018] HCA 24, [1], [22]-[26] (Bell J agreeing on the statement of principle).
[11] (2018) 356 ALR 50, [26] (citations omitted).
[12] (2018) 356 ALR 50, [43]-[58].
Accordingly, internal relocation requires consideration of whether relocation is reasonably practicable, which brings attention to the circumstances of the individual applicant and the impact which it may have upon him or her or their family.[13] For those reasons, how a decision maker should approach the relocation will depend in part on the framework set by an applicant’s claims about why it is not safe and/or reasonable for him or her to relocate to a particular location.[14]
[13]SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18, [24], [30] (Gummow, Hayne and Crennan JJ); SZSCA (2014) 254 CLR 317, [27] (French CJ, Hayne, Kiefel and Keane JJ) citing Januzi [2006] 2 AC 426, [15], [20] in turn approving E v Secretary of State for the Home Department [2004] QB 531, [23].
[14] AHK16 v Minister for Immigration and Border Protection [2018] FCAFC 106, [27].
As the parties accepted, there are essentially two limbs to the test for internal relocation: (1) is there a place within the person’s country of residence to which that person can safely relocate; (2) if so, is it reasonably practicable for him or her to do so having regard to their particular and individual circumstances.
Ground 1 – incorrect application of relocation test
Ground 1 reads:
The decision of the Tribunal was affected by jurisdictional error in that the Tribunal applied the incorrect test for whether it was reasonable for the applicant to relocate to another area within Pakistan.
Particulars
(a)The proper test under s36(2B) was whether the applicant faced a real risk of significant harm over and above the general population in the future if he was to relocate to Lahore.
(b)The applicant was a member, former office bearer and presumed future activist of the secular political party the Awami National Party (ANP).
(c)In focusing only on whether members of the ANP had recently been harmed in Lahore, and not on whether the applicant’s involvement in a secular political party would expose him to a real risk of significant harm in Lahore, the Tribunal applied the incorrect test.
(d)The Tribunal erred in failing to assess the risk of future harm in its relocation assessment, by relying on information that members of the ANP had not recently been harmed in Lahore, rather than assessing the risk of future harm in light of information that members of other secular political parties had recently been harmed in Lahore and that members of the ANP had been the most targeted of all the secular parties throughout Pakistan.
Ground 1 concerned the first limb of the relocation test.
Resolution
The applicant submitted that as part of the process of analysing relocation, the Tribunal was required to assess whether the applicant, given his profile and attributes, would face a real chance of serious harm or a real risk of significant harm in the place to which relocation was being contemplated. It was submitted that the enquiry involved a forward looking test; that is, whether the applicant could reasonably expect to face harm if he relocated to that place in the future. In this respect, counsel for the applicant correctly submitted that the question may be informed, in part, by events which had occurred in the past.[15]
[15]Citing Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, 575; cf CDW18 v Minister for Home Affairs [2019] FCA 270, [14]-[15] (Thawley J).
The focus of the applicant’s criticism under Ground 1 was that while the Tribunal accepted the applicant had been an office bearer and activist within the ANP (described as a prominent secular political party), and that he may involve himself in ANP activities upon return to Pakistan, it had found that the applicant would not face a real chance of serious harm if relocated to Lahore by reason that it had “not identified information that ANP members in Lahore are being harmed”: Reasons [86]-[87]. On that basis it was submitted that the Tribunal’s enquiry had been too narrow as the Tribunal had asked, but failed to answer, “the forward-looking question of whether the applicant may face harm in Lahore in the reasonably foreseeable future, based on information before the Tribunal that there was a pattern of violence by the Taliban throughout Pakistan towards secular parties, including the ANP, and that such violence towards secular parties had been occurring in Lahore.” The applicant identified information before the Tribunal that the Taliban was actively targeting members and supporters of secular parties, including the ANP, throughout Pakistan, including in Lahore.[16]
[16]Citing Pakistan Institute for Peace Studies, Pakistan Security Report 2013 (January 2014, at pp. 10, 21, 22) and the applicant’s written submission to the Tribunal at [57]-[58].
Ms Staker of counsel for the Minister accepted that the first limb of the internal relocation test required a forward-looking test and proceeded to demonstrate that the Tribunal had, at the least, correctly posed that test in its consideration of the issue. The Tribunal had reasoned at [52]:
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
And upon its review of the issue of relocation the Tribunal concluded at [110] that the applicant did not face a real chance of harm whether “now or in the reasonably foreseeable future, in another part of Pakistan, such as Lahore or another urban area outside KPK and the FATA.”
As submissions developed before me, it became clear that Ground 1 was not concerned with whether the Tribunal had identified the correct test but rather whether it had properly applied that test. More precisely, Ground 1 concerned whether, in light of the evidence before it, the Tribunal had failed to apply the test correctly by properly informing itself of the risk of harm (by reference to past and present events), and assessing the risk of harm in the reasonably foreseeable future.
As described in Particular (b) of Ground 1, the applicant “was a member, former office bearer and presumed future activist of the secular political party [the ANP]”. Again, counsel for the Minister demonstrated that the Tribunal had recognised as much, including that some rank and file ANP members had been targeted by the Taliban: Reasons, [64], [87].
The applicant pointed to the evidence which was before the Tribunal, including the country information identified in the Reasons at [41] and the country information as summarised in the Appendix thereto. The Reasons at [41] indicate that it had paid regard to the country information that was before the delegate together with that which had been identified in the applicant’s written submission and also the country information as summarised in the Appendix to those Reasons.
Attention was also drawn to the country information contained in the Pakistan Institute for Peace Studies, Pakistan Security Report 2013 January 2014, (2014 PIPS report) to which the Tribunal referred. In that report, in section 3 on p. 10, Major Actors of Instability in 2013, it was stated that the Taliban was identified as being the major actor of instability which had either claimed responsibility for, or reportedly been involved in, 34 suicide attacks (out of a total of 46 such attacks) in the country in 2013, together with 117 attacks on:
. . . political leaders and workers and election related targets in 2013, killing one hundred and 84 people and injuring another 716. Such attacks by the TTP increased significantly in April and May 2013, badly affecting the election campaign of moderate and secular political parties, especially . . . ANP. . . The TTP expanded the range of its targets from security forces to political and sectarian killings, as it was found directly involved in 16 sectarian related terrorist attacks in 2013 . . .
Further, in section 4.4 of the 2014 PIPS report at pp. 21-22, Punjab, it was stated that as many as 38 terrorist attacks had occurred in Punjab in 2013 (being an increase from 17 in 2012). After noting that the lives of 47 persons had been claimed and that 142 others were injured, it was further stated that 15 of the attacks were “sectarian in nature” with the majority (20) of the attacks in Punjab being carried out by the Taliban and its associates. It was also reported that “Lahore and Rawalpindi witness the highest number of attacks with seven attacks reported in each city” and that the “[m]ajority of the attacks in Lahore were of sectarian nature.” The 2014 PIPS report described 81 incidents of violence in Punjab “with an alarming 170% rise compared to . . . the previous year.”
The 2014 PIPS report thus indicated that the Taliban’s focus had expanded beyond the military and security forces to also include political and sectarian killings. The Tribunal had relied upon that report in some respects but did not address the matters at [46]-[47] above.
The applicant also pointed to his written submissions as filed with the Tribunal which addressed the question of internal relocation. Attention was drawn to “the 27 March 2016 Easter Sunday bombing in Lahore – the capital of the Punjab province – which killed 70 people and wounded 300 others”. The submission proceeded to state that the day immediately after that bombing, a Taliban offshoot with cells throughout Punjab had claimed responsibility by stating that the Easter Sunday bombing “was calculated to show that they still retain the ability to strike deep into Pakistan’s heartlands, particularly Lahore.” The submission provided country information dated 28 March 2016 as supporting these propositions. Concerning the Easter Sunday bombing, the Tribunal addressed this issue at [96] and recorded its impression that the bombing had been targeted at Christians, stating:
While it accepts that the attack does suggest that the Taliban have the capacity to strike as they did, it does not accept, for the reasons already discussed, that the applicant faces a real chance of being pursued and targeted the serious harm into a large city such a (sic) Lahore, having regard to all of the circumstances and to all of the country information.
The applicant submitted that the Tribunal had failed to “put all of that information together” and in so failing, had adopted an overly narrow focus of the question of whether the applicant faced a risk of harm, particularly in the future. It was said that the Tribunal was, in effect, preoccupied with whether the Taliban from the Swat Valley would continue to target the applicant and pursue him to other parts of Pakistan. This focus was submitted to be too narrow as the Tribunal had to assess harm from many perspectives. The Tribunal had focussed only on harm from the perspective of Taliban from the Swat Valley tracing and pursuing the applicant, and not the broad risk of harm to him as a political activist who would resume that activity and be at risk in Lahore; which the evidence before the Tribunal indicated may occur.
Counsel for the Minister placed emphasis upon the Reasons at [78] where the Tribunal had stated:
. . . there is a significant population of Pashtuns in Lahore, that state protection is more available, and Taliban or other militant Sunni activities are less prevalent in Lahore. The Tribunal notes that the country information indicates that the Taliban were most active in KPK and the FATA, that urban areas in other parts of Pakistan saw relatively few attacks, and that the attacks that did occur were targeted against military or other authorities or minorities. The Tribunal is satisfied that the applicant would not be characterised in either of these categories.
While the implications of these findings are considered further below, it can be seen that the Tribunal considered the country information before it indicated that the Taliban’s targets were confined to the “military or other authorities or minorities”. This statement was at odds with the content of the 2014 PIPS report as referred to at [46]-[47] above.
Counsel for the Minister further submitted that when read fairly and as a whole, it was plain that the Tribunal had not focussed “only on whether members of the ANP had recently been harmed in Lahore”, but rather that the Tribunal had made a number of findings relevant to the risk of future harm to the applicant if he were to relocate to an area outside his home area, including Lahore. This conclusion was said to be supported by the Tribunal’s findings, including that:
a)the applicant’s activities were largely confined to the local level and did not extend beyond KPK and were not at a high-profile level: Reasons, [79];
b)it had not accepted the applicant or his family were persons of such distinction in the local Peace Committee that the Taliban would seek to harm him by pursuing him in other locations within Pakistan: Reasons, [79];
c)the Taliban was a network of Sunni militant organisations which did not have the level of cohesion and integration to target locally known activists like the applicant outside their home regions: Reasons, [77];
d)there was not a real chance that the Taliban would pursue the applicant outside of his general home area, or KPK, for reasons of his or his family’s activities with the ANP: Reasons, [79];
e)country information in relation to Peace Committees demonstrated that acts of violence against committee members were limited to the locations in which they operated within the KPK region: Reasons, [80];
f)it had not identified information demonstrating Peace Committee activists had been targeted in locations such as Lahore: Reasons, [80];
g)it had not accepted that the Taliban would devote resources, even if they had such resources, to trace the applicant to certain large urban cities: Reasons, [83]; and
h)it had not found the applicant would be of interest to the Taliban in other locations in Pakistan: Reasons, [88].
Counsel for the Minister noted that while the applicant had focussed upon the Tribunal’s statement at [87] that it had “not identified information that ANP members in Lahore are being harmed”, this statement, contrary to the applicant’s contention, did not indicate that the Tribunal had focused on a narrow enquiry of whether ANP members had been or were being harmed in the past and the present in Lahore. This was said to be so because, after stating that it had not identified information that ANP members in Lahore were being harmed, the Tribunal had found that “the applicant does not have a real chance of serious harm or a real risk of significant harm for this reason.” The phrased so emphasised was said to contra-indicate that this had been the only reason why the Tribunal found that the applicant would not face a real risk of significant harm in Lahore: Reasons, [88]. Counsel for the Minister further submitted it was clear from a plain reading of the Reasons that, in considering internal relocation, the Tribunal had assessed the risk of future harm to the applicant.
I do not accept the submission that there was no indication that the Tribunal had failed properly to assess risk of future harm. Where a Tribunal has correctly identified the applicable test, the mere use of “reasonably foreseeable future” does not immunise a decision from error: SZGHS v Minister for Immigration and Citizenship;[17] AIE15 v Minister for Immigration and Border Protection;[18] CDW18 v Minister for Home Affairs.[19] Nor do I accept that it is artificial to read into, or infer from, the Reasons at [87] the absence or failure by the Tribunal to consider the risk of harm in the reasonably foreseeable future. In my view, upon a fair reading of the Reasons as a whole, while it correctly identified the test to be applied, the Tribunal framed its enquiry as to the risk of harm which the applicant might face too narrowly. It addressed itself to a consideration of historical and present events without undertaking in any adequate way, the essential, predictive and forward looking, analysis of the risk which the applicant might face in the future. While the Tribunal plainly recognised that the relocation test did require consideration of the future risk of harm, in my view the Reasons confirm that this was not adequately considered.
[17] [2007] FCA 1572, [3], [28], (Allsop J).
[18] [2018] FCA 610, [33], (Perry J).
[19] [2019] FCA 270, [20]-[21], (Thawley J).
I agree in the submission of counsel for the applicant that the reasoning at [78] demonstrates both the narrowness of the Tribunal’s focus and its failure to apply properly the first limb of the test of relocation by failing to have regard to the country information that was before it in assessing whether the applicant could safely relocate to Lahore. In particular, part of the reasoning at [78] was confined to the attacks upon the military (and others) and relied upon to supporting a conclusion that the Tribunal was satisfied the applicant would not be characterised as falling within these categories. To have said as much was only to exclude the applicant from categories into which he plainly did not fall. It did not entail consideration of the risks to which he might be exposed by reason of his secular and political affiliations. The available country information provided ample support for a conclusion that there had been an escalation in the incidence of violence in Lahore in which the Taliban had expanded its range of targets (i.e., beyond the military and security forces) to both political and sectarian killings.
The Tribunal’s failure to take account of those matters and, instead to confine itself to the identified risks of harm to the military, coupled with its conclusion that it had “not identified information that ANP members in Lahore are being harmed” supports a conclusion that it failed to properly assess past and present events that were relevant to the evaluation of a risk of harm to the applicant and to sufficiently undertake the predictive, or forward-looking, task of assessing whether the applicant was at risk of harm in the reasonably foreseeable future.
In my opinion, Ground 1 is made out.
Ground 2 – failure to take account of information
Ground 2, which was pressed as an alternative formulation of Ground 1 reads:
The decision of the Tribunal was affected by jurisdictional error in that the Tribunal failed to take into account the material before it in reaching the finding that the applicant, as a member, former office bearer and presumed future activist of the secular political party the Awami National Party, did not face a real chance of serious harm or a real risk of significant harm in Lahore, or alternatively, that finding was irrational in that there was no logical connection between the evidence before the Tribunal and the inferences drawn.
Particulars
(a)The Tribunal failed to take into account information that members of other secular political parties had recently been harmed in Lahore and that members of the ANP had been the most targeted of all the secular parties throughout Pakistan.
(b)Alternatively, the finding that the applicant did not face a real chance of serious harm or real risk of significant harm in Lahore was irrational in that there was no logical connection between that finding and the evidence that members of other secular political parties had recently been harmed in Lahore and that members of the ANP had been the most targeted of all the secular parties throughout Pakistan.
By Ground 2 the applicant contended that the Tribunal failed to pay proper regard to information that was before it in finding that the applicant did not face a real chance of serious harm or a real risk of significant harm in Lahore. In particular, reliance was placed upon the information detailed at [43]-[48] above, including that ANP members had been the most targeted of all secular parties throughout Pakistan.
Resolution
Relevantly to Ground 2, the Tribunal found at [87] that:
. . . [it] accepts as plausible that the applicant may involve himself in ANP activities on return to Pakistan. The ANP exist across Pakistan, including in Karachi, Islamabad and Lahore. The Tribunal accepts that while there have been some killing of members of the ANP in Karachi recently, at the same time the ANP had an active branch in Lahore. Based on country information, such as that in the DFAT country reports, the tribunal considers that the applicant would be able to participate in the ANP should he choose to do so. The Tribunal has not identified information that ANP members in Lahore are being harmed, the Tribunal finds the applicant does not have a real chance of serious harm or a real risk of significant harm for this reason. (Emphasis added)
By par 430(1)(b)-(d) of the Act, the Tribunal was obliged to furnish a written statement that set out its reasons for the decision, the findings made on any material questions of fact and to refer to the evidence or any other material on which those findings were based.
The Minister submitted that a number of well-settled principles were to be applied in relation to the complaint made under Ground 2, being that:
a)the Tribunal is not obliged to “give a line-by-line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the Tribunal”;[20]
b)the inference that the Tribunal failed to consider material may not be drawn too readily, especially where its reasons are generally comprehensive and the issue to which the relevant material goes “has at least been identified at some point”;[21]
c)the applicant has the onus of demonstrating that evidence has not been considered and in so doing, must not merely point to material capable of supporting that inference, but must show that this is the appropriate inference to draw having regard to all the evidence and other material before the Court;[22]
d)even if it can be shown that particular material was overlooked, that will not amount to jurisdictional error so long as it does not mean that the Tribunal “has not considered the applicant’s claim”’[23]
e)the selection of, and weight given to, country information are matters for the Tribunal.[24]
[20]Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405; [2000] HCA 1, [65].
[21]Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184, [47]. See also Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, [67]-[69]; Minister for Immigration and Citizenship v MZYZA [2013] FCA 572, [30].
[22] SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109, [25].
[23]Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51, [28]. For a more recent application of these principles, see BMR17 v Minister for Immigration [2018] FCA 1250.
[24]NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, [11]-[13].
Those principles were correctly identified as applying to the determination of Ground 2. To those principles may be added that jurisdictional error is not always established by demonstrating a failure to refer to relevant material.[25] The fundamental question is the relative importance of the material to the exercise of the Tribunal’s core function of review and the seriousness of the error.[26]
[25]Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67, [58], citing Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99, 122 (Robertson J).
[26] SZSRS, supra (2014) 309 ALR 67, [29].
It was said that Ground 2 was without merit and that the applicant had not discharged the onus of demonstrating a failure to consider the evidence in circumstances where the Tribunal had relevantly:
a)accepted that ANP leaders, as well as some rank and file members, have been targeted by the Taliban: Reasons, [65];
b)noted that the DFAT County Information Report for Pakistan, 2016 (2016 DFAT report) indicated that the Taliban had attacked targets throughout Pakistan, including “political rivals”: Reasons, [77];
c)had regard to information in the 2016 DFAT report that the ANP “suffered more attacks than any other political party in 2013”: Reasons, [125];
d)accepted that the bombing in Lahore “does suggest that the Taliban have the capacity to strike as they did” and in doing so, thereby referred expressly to the applicant’s submission: Reasons, [96];
e)more generally, had cited the 2014 PIPS report, the failure to refer to which formed the main subject of the applicant’s complaint: Reasons, [125].
The Minister submitted that despite those various findings, the Tribunal had not been satisfied that the applicant would face a real chance or risk of serious or significant harm if he were to relocate to Lahore, or other urban areas outside KPK or FATA. It was further submitted that the Tribunal’s reasons for this conclusion were extensive and careful. It was said that the fact that some of the material before the Tribunal might have supported a different finding from that reached was of no consequence, and that a misapprehension or failure to consider the applicant’s claims was not disclosed by the Reasons. In conclusion, the Minister submitted that the applicant had not discharged the onus of demonstrating that it should be inferred the Tribunal had failed to consider the information upon which the applicant relied.[27]
[27]Citing SZDXZ v Minister for Immigration [2008] FCAFC 109, [25]; Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALJR 407, [60]-[68]; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, [67]-[69]; Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594, [32] and [69]-[70]; ACE15 v Minister for Immigration and Border Protection [2017] FCA 1054.
The court is to adopt a cautious approach in determining whether there has been a proper, genuine or realistic consideration of a claim: BZD17 v Minister for Immigration and Border Protection.[28] At the same time, mere advertence to a matter will not suffice, especially where there has been no, or insufficient, analysis of the matter relied upon.[29]
[28][2018] FCAFC 94, [38] (The Court).
[29]Ibid, [35] (The Court) citing Islam v Cash (2015) 148 ALD 132, [14] (Flick J).
The applicant correctly submitted that the court is entitled to take the Reasons as setting out the findings of fact which the Tribunal itself considered to be material to its decision and, by extension, that the absence of reference to relevant information may enable a court to find jurisdictional error in a given case: Minister for Immigration and Border Protection v MZYTS.[30]
[30] (2013) 230 FCR 431, [49] (The Court).
While country information was considered in the Reasons, in my view the finding at [87] that the applicant did not face a real chance of serious harm or a real risk of significant harm in Lahore, demonstrated the Tribunal had not considered country information such as the risk faced by members of the ANP in Lahore and in Pakistan more generally. The Tribunal found that it had “not identified information that ANP members in Lahore were being harmed”. Such a finding disregarded the information which was before it as referred to above. In particular, the Reasons at [87] confirm that the Tribunal did not have regard to the matters identified in the 2014 PIPS report: see at [45]-[48] above.
Further, in Appendix A to the Reasons at [125], the Tribunal did refer to the 2014 PIPS report, however, it did so in a way which did not refer at all to the targeting of secular political activists. Taken together, the Reasons at [87] and [125] support a conclusion that the Tribunal had failed to consider the evidence that members of other secular political parties had recently been harmed in Lahore or that members of the ANP had been the most targeted of all the secular parties throughout Pakistan.
In discharging the applicable onus, I consider that the applicant has pointed to important material that was capable of supporting an inference that the Tribunal failed to have regard to evidence that was before it and that such evidence was both relevant and important to an assessment of whether secular political activists were being targeted and killed in Lahore and so whether the applicant was at risk of harm.
Further, having regard to all the evidence and other material before the court, I consider that it is appropriate to infer from the absence of the reference to the relevant information in support of the finding at [87] that the Tribunal did not consider such information to be material to its consideration of that issue: compare MZYTS.[31] The failure to refer to that information in reaching the finding at [87] is consistent with the view that the Tribunal employed a narrow framework when assessing the question of risk in the context of relocation. In particular, its reasoning was narrowly focused upon identification of the past and present risk of harm in Lahore without adequate consideration of the risk of harm in the future. This was an essential aspect of the predictive or forward-looking task that the Tribunal was required to undertake when addressing the question of relocation. The failure to employ information that informed the existence, nature and extent of the risk faced by members of secular political parties bore directly upon the Tribunal’s core function of review. The information was not of merely passing relevance but was of direct relevance to an important issue on review.
[31] (2013) 230 FCR 431, [49].
It follows that I consider the Tribunal’s failure to have regard to the relevant information when assessing the question of risk constitutes a constructive failure to perform its core function of review.
The alternative basis on which Ground 2 was pressed was that the finding that the applicant did not face a real chance of serious harm or a real risk of significant harm in Lahore was irrational; there was said to be no logical connection between this finding and the evidence referred to above that members of other secular political parties had recently been harmed in Lahore and that members of the ANP had been the most targeted of all the secular parties throughout Pakistan.
I accept that the test for irrationality presents a high bar. It was common ground that one of the bases on which an administrative decision may be shown to be irrational or illogical in the requisite sense is that there is no logical connection between the evidence and the inferences drawn.[32]
[32]Minister for Immigration and Citizenship v SZMDS (2010) 240 CRL 611, [135] (Crennan and Bell JJ).
It may also be accepted that the Tribunal’s finding that the applicant did not face a real chance of serious harm or a real risk of significant harm in Lahore was based on country information. However, to state the proposition at that level of generality distracts attention from the evidence that was before the Tribunal and in particular, that the consideration of country information in Appendix A at [125] left out of account that the 2014 PIPS report referred to the targeting of secular political activists and the level of violence in Lahore. The matters addressed in sections 3 and 4 of that report (Major Actors of Instability in 2013 and Security Landscape in 2013) expressly identified that the Taliban had expanded its range of targets from military and security forces to political and sectarian killings, and that the highest number of such attacks were witnessed in Lahore. Those matters were not addressed in the Tribunal’s summary of the country information at [125].
A failure to give proper, genuine and realistic consideration to the evidence which was before an administrative decision maker may support a conclusion that it was irrational or illogical in the sense necessary to establish that jurisdictional error may have been committed.[33] The finding at [87] that the Tribunal had not identified information that ANP members in Lahore were being harmed and that, for this reason, the applicant did not face a real chance or risk of relevant harm, demonstrates that the 2014 PIPS report had not received the consideration that was required to be given to it.[34] For those reasons, I do not accept that a logical connection between the Tribunal’s finding and the evidence on which it was based is demonstrated.[35]
[33] Cf BZD17, supra [2018] FCAFC 94, [45] (The Court).
[34] See 2014 PIPS report at paras 3.1 and 4.4.
[35] Cf DAO16 v Minister for Immigration and Border Protection (2018) 353 ALR 641, [41].
Ground 2 is made out.
Ground 3 – reasonable practicality of relocation
Ground 3 reads:
The decision of the Tribunal was affected by jurisdictional error in that the Tribunal failed to ask itself the right question in assessing the reasonableness of relocation, or alternatively, failed to consider each integer of the applicant’s objections to relocation.
Particulars
(a)The applicant’s objections to relocation included that he would have difficulty obtaining work because the usual way a young man in Pakistan obtains his first employment opportunities is through family or friends and he did not have any family or friends outside his home region.
(b)The Tribunal’s consideration of the applicant’s objections to relocation failed to consider the reasons given by the applicant why relocation in his personal circumstances would be unreasonable.
(c)The Tribunal’s consideration of the reasonableness of relocation by reference to the ability of a large Pashtun population to survive in Lahore failed to address the personal circumstances of the applicant and thus the Tribunal asked itself the wrong question.
Ground 3 is addressed to the second limb of the relocation test; namely, whether it was reasonably practicable for the applicant to relocate in Pakistan. In substance, the applicant contends that the Tribunal’s decision was tainted by jurisdictional error because it failed to give any or any proper consideration to one of his objections to relocation.
Relevantly, the applicant relied upon an objection that relocation was not reasonable since he had a lack of family or other connections outside of his home area and that this would have an impact on his ability to obtain employment. In particular, the applicant had stated:[36]
I do not have relatives outside my home area in Pakistan. My only relatives are in Mardan, which is approximately 100km away from my home village of Kawdary. If I were to relocate away from my home area I would not have family and traditional support networks. Also I would have very few employment prospects if I were to relocate within Pakistan as the usual way a young man in Pakistan obtains his first employment opportunities is through family or friends. In a relocation scenario I would not have these connections available to me and so would be facing unemployment and, eventually, homelessness. (Emphasis added)
In effect, the applicant contended that as a young man, he would have little prospect of securing employment in Lahore as the absence of family or friends posed a cultural barrier to employment. Beyond this paragraph of his statement, no other evidence, country information or submissions were provided in support of the contention that there existed in Pakistan a cultural norm of the kind described.
[36] Applicant’s statement at [36].
The gravamen of the applicant’s complaint was that the Tribunal had failed to appreciate the essential nature of his objection; namely, that the absence of family or friends outside of his home area would be a reason for his difficulty in finding employment. The applicant accepted that the Tribunal had considered whether employment would be available to him if he relocated and that it had done so in light of his objection that competition for jobs in urban areas would be “too strong”: Reasons, [98]. The applicant also accepted that the Tribunal considered whether “the absence of a network of friends would be a significant fetter to the applicant’s ability to settle into a new city”: Reasons, [99]. It was also submitted that while the Tribunal had appreciated the relevance of both family and employment as factors which grounded his objection to relocation, it had failed to draw a connection between the two and so failed to consider that objection (alternatively, had failed to consider that integer of his claim). It was on this basis that the applicant submitted the Tribunal had failed to address the precise objection to relocation as detailed in his statement.
Objection to relocation
The applicant submitted that an analysis of the reasonableness of relocation was guided by, but not confined to, consideration of his objections and that the Tribunal was required to evaluate the reasonableness of relocation on the whole of the material before it.[37] Further, it was submitted that, while on a fair reading of the Reasons, the Tribunal had attempted to deal in good faith with the applicant’s objections, it had misunderstood at least one of the objections and thereby failed to deal with it. The status of an applicant’s objections to relocation is thus a matter of some moment to the present application.
[37] MZANX v Minister for Immigration and Border Protection [2017] FCA 307, [58].
Finally, I accept that in general, the choice of country information and the factual findings arising from country information, where the country information is recent and the factual findings are open on the available material, are matters solely for the Tribunal as the finder of fact.[80] As counsel for the Minister observed, the Tribunal may rely on older country information, provided that information is not wrong or contradicted by more recent information.[81] That occurred in this case.
[80]NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, [11] (Gray, Tamberlin and Lander JJ).
[81] BMP15 v Minister for Immigration and Border Protection [2018] FCA 1291 at [35]-[36].
For the reasons above, had it been appropriate to consider proposed Ground 4, it would have been rejected.
Conclusion
It is necessary to say something briefly concerning the manner in which this application has been pursued. That is because it is notorious that the business of this court is over-extended and has limited resources to afford to the many litigants who come before it. It is consistent with the obligations of legal practitioners that they advance the real and substantive issues that are open to be pursued. To do so has the significant advantage that it will focus rather than distract the court’s attention upon grounds of review that are of merit. It is also important that they do so because, where, as here, a matter is to be remitted for reconsideration, this is to occur having regard to the submissions that had been made to this point, including that it the applicant had made a forensic decision not to advance submissions in relation to the second limb of the relocation test; that is, the reasonable practicability of him being able to relocate to another part of his receiving country.
The application should be allowed.
I certify that the preceding one hundred and thirty (130) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Associate:
Date: 24 October 2019
2
31
3