CHU19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2024] FedCFamC2G 1092
•29 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CHU19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 1092
File number: MLG 1953 of 2019 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 29 October 2024 Catchwords: MIGRATION LAW – application for judicial review – decision of the Immigration Assessment Authority – Safe Haven Enterprise visa – consideration of whether the Authority made a reasonable finding in respect of relocation within Pakistan – consideration of the applicant’s claims as made to the Authority and the material before it – findings by the Authority open to be made – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth) ss 5J, 36(2)(a) and (aa) Cases cited: MZACX v Minister for Immigration and Border Protection [2016] FCA 1212
SZATV v Minister for Immigration [2007] HCA 40
Division: Division 2 General Federal Law Number of paragraphs: 53 Date of last submissions: 30 September 2024 Date of hearing: 30 September 2024 Place: Melbourne Counsel for the Applicant: Mr A Aleksov Solicitor for the Applicant: Playfair Legal Pty Ltd Counsel for the First Respondent: Ms K McInnes Solicitor for the First Respondent: Mills Oakley The Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 1953 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CHU19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
29 OCTOBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to ‘Minister for Immigration and Multicultural Affairs’.
2.The applicant’s application be dismissed.
3.The applicant pay the first respondent’s costs in a sum to be fixed if not agreed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
DEPUTY CHIEF JUDGE MERCURI:
INTRODUCTION
Before the court is an application for judicial review of a decision of the Immigration Assessment Authority (‘the Authority’) made on 29 May 2019 by which it affirmed a decision of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Minister’) refusing the applicant a Safe Haven Enterprise visa (‘the visa’) dated 17 April 2019.
BACKGROUND
The applicant is a Turi Shia from Parachinar in Pakistan. The applicant arrived in Australia on 11 July 2013.
On 22 November 2016, the applicant lodged an application for the visa. The applicant claimed to fear harm due to his Shia faith and his Pashtun ethnicity.
The applicant referred to two incidents which occurred when he was travelling in a van in 2008 and in a bus in 2010 which were shot upon. The applicant was not personally injured in either incident. Nor did the applicant claim to have been personally targeted. Rather, he says he left Pakistan due to the violence.
On 17 April 2019, a delegate of the Minister refused to grant the applicant the visa. The delegate found that the applicant faced a real chance of serious harm in Parachinar but found that he could relocate to other parts of Pakistan where he would not face a serious risk of harm.
The matter was then referred to the Authority. On 14 May 2019, the applicant provided written submissions to the Authority, dated 10 May 2019.[1]
[1] Court book at pages 202-207.
The applicant’s representative submitted that the applicant had suffered various disadvantages at the hearing before the delegate and requested a further hearing before the Authority.
On 29 May 2019, the Authority affirmed the delegate’s decision. In doing so, the Authority set out the applicant’s claims at paragraph [8].
At paragraph [12], the Authority noted that the applicant was born, and spent most of his life, in Parachinar in the KP province. It also observed that he has spent some time studying and residing in Rawalpindi and Islamabad. However, it noted that aside from one brother who lived in Qatar, his entire family still resided in Parachinar. Consequently, the Authority concluded that the applicant would return to Parachinar if he were to return to Pakistan.
The Authority then went on to consider the applicant’s claims to fear harm as a Shia Pashtun/Turi at paragraphs [13] to [16]. At paragraph [17], without deciding the issue definitively, the Authority left open the possibility that the risk of harm that the applicant faced if he were to return to Parachinar, rose to a ‘real one’. It then went on to consider, as it was required to under s 5J(1)(c) of the Migration Act 1958 (Cth) (‘the Act’), whether that risk of harm extended to all areas of the receiving country and the Authority concluded that it did not.
At paragraph [18] the Authority referred to country information and concluded that the risk to the applicant in Islamabad or Rawalpindi ‘from any sort of harm, sectarian or otherwise, to be remote’. Similarly, at paragraph [19], the Authority considered the risk faced in Karachi. The Authority concluded, after referring to country information, at paragraph [20]:
… internal relocation is ‘widespread and common’. … Apart from the fact that internal migration and relocation is a common occurrence … DFAT has previously observed that Shias relocate ‘with relative ease and frequency’. It further notes that there are Shia populations in most large urban centres and that these cities offer a degree of anonymity. Nothing in the available information suggests that this situation has changed or that the applicant would have any issues accessing Islmabad, Rawalpindi or Karachi.
At paragraph [21], the Authority considered the risk of harm arising from the fact that the applicant is Pashtun.
The Authority then went on to consider the risk of harm arising from the applicant’s mental health at paragraphs [22] to [25]. Also, at paragraphs [25] to [27], the Authority considered the applicant’s employment prospects. Relevantly, the Authority summarised the applicant’s employment whilst in Australia, including the fact that he was looking to obtain a security licence so that he could undertake security work in addition to his current work as a trolley pusher. At paragraph [26], the Authority considered country information about the following:
… Turis face difficulties finding employment and ‘are generally discriminated against in employment selection processes.’… However, DFAT also notes that Turis generally prefer moving to known Shia areas, and that Islamabad, Rawalpindi and Karachi are among the preferred migration destinations. Turis often live in enclaves that mitigate societal discrimination.
The Authority, after discussing the applicant’s particular circumstances whilst living in Rawalpindi and his adaptability as evidenced by his move to Australia, concluded at paragraph [27] that:
The applicant will no doubt face challenges re-establishing himself on return to Pakistan … Given the applicant’s relative youth, his general good health, the absence of any indication that the applicant has required specialised care or medication, his tertiary education, facility in several languages including English, and the act that he has been able to find and retain employment in Australia, I am not satisfied that the applicant would be unable to find employment or otherwise subsist in Islamabad, Rawalpindi or Karachi.
After considering the risk of harm to the applicant as a returned asylum seeker, the Authority concluded that the applicant did not face a real chance of serious harm due to a convention reason, if he were to return to Islamabad, Rawalpindi or Karachi. Consequently, the Authority concluded that the applicant did not meet the requirements in s 36(2)(a) of the Act.
The Authority then proceeded to consider whether the applicant met the complementary protection requirements. At paragraph [35], the Authority said:
… I have found that while the applicant may face a real chance of persecution in KP province, that risk does not extend to the entire country and the applicant would not face a real chance of any harm in Islamabad, Rawalpindi or Karachi. … Based on the same information, I find that the applicant does not have a real risk of suffering significant harm in Islamabad, Rawalpindi or Karachi.
At paragraphs [36] to [40], the Authority considered whether it was reasonable in the sense of practical, for the applicant to relocate to Islamabad, Rawalpindi or Karachi and concluded that it was.
Having regard to all of these matters, the Authority found at paragraph [41] that there were not substantial grounds for believing that as a necessary and foreseeable consequence of being returned to Pakistan, that the applicant would suffer significant harm. Therefore the applicant did not satisfy the requirements of s 36(2)(aa) of the Act.
The Authority therefore affirmed the delegate’s decision.
GROUND OF REVIEW
The applicant raises one ground of review, namely:
1. The IAA failed to consider all of the applicant’s objections to relocation, including that he would not know anyone in any of the postulated places of relocation (i.e., be without support networks), and would not be able to obtain employment.
At the heart of the applicant’s case is the way the Authority considered the issue of whether the applicant could secure employment if he were to return to Pakistan but not live in Parachinar.
The applicant concedes that the Authority considered this in the context of whether he met the refugee criteria, namely whether his inability to find employment would result in him not being able to subsist such that it could be said to provide the basis for a well-founded fear of persecution. The applicant does not take issue with the Authority’s assessment in this regard.
However, the applicant asserts that in considering whether he satisfied the complementary protection criteria, the Authority was required to consider more than just whether the applicant could find employment that would allow him to subsist. Rather, the applicant says that the Authority was required to, but did not, consider whether the nature of the employment that the applicant might be able to secure if he were to return to Islamabad, Rawalpindi or Karachi would be such that it could properly conclude that it was reasonable, in the sense of practicable, that he relocate to one of those areas.
It is submitted for the applicant that when the Authority’s reasons are considered in their entirety, that the only consideration of the applicant’s ability to find employment was in the context of whether that ability would limit his ability to subsist.
In oral submissions, the applicant’s counsel said that the applicant clearly objected to relocation on the basis that relocation within Pakistan was not reasonable, including because of the discrimination that he might face in employment.
It is submitted for the applicant that the Authority did not consider this question adequately, or at all, and in failing to do so, it is submitted that the Authority’s decision was affected by jurisdictional error.
Counsel for the applicant referred to the delegate’s decision, wherein the delegate discusses the reasonableness of relocation.[2] Relevantly, in discussing the applicant’s employment prospects, the delegate said:
I have considered the applicant’s ability to gain employment upon return to Pakistan. While the official unemployment rate in Pakistan is 5.8 percent, Karachi and Islamabad offer better opportunities. I take into account that it may be more expensive to live in Islamabad or Karachi than in the FATA, but I note that DFAT reports Pakistan has seen improved economic growth and reduced inflation in recent years and the number of people living in poverty has fallen. There is still some dissatisfaction with the low level of development, which has acted as a ‘push’ factor for external migration, but there are also better economic opportunities in large urban centres which have encouraged internal migration. The cities also offer better access to healthcare and education.
…
Based on the applicant’s declared employment and personal history … I am satisfied that the applicant will be able to obtain employment and shelter in Karachi or Islamabad.
I acknowledge the applicant’s claims that he lacks contacts in other parts of Pakistan. I nevertheless consider that he would more likely than not be able find support within the Pashtun/Shia community in Karachi or Islamabad. I am mindful that the applicant has demonstrated sophisticated social skills and initiative through his interactions in communities outside of Parachinar within Australia. He has also demonstrated a strong ability to subsist in different environments and in different locations without a family network support.[3]
[2] Court book pages 169 to 170.
[3] Court Book at page 170.
By comparison, the Authority only considers whether the applicant’s ability to find employment would allow him to subsist. The applicant submits that considering whether the applicant could find employment which would allow him to subsist, is not sufficient to discharge the obligation to consider whether it was reasonable to require him to relocate. Put another way, had the Authority considered whether the discrimination against Turis outside Parachinar would mean that the applicant would only be able to find menial jobs, this might have led the Authority to conclude that it would be unreasonable for him to relocate outside of Parachinar, or indeed had the Authority considered some of the factors to which the delegate had regard, no error would be argued. The Authority, therefore, according to the applicant, failed to properly consider the reasonableness of the proposed relocation, by failing to consider the nature of the employment that the applicant might be able to find if he were to relocate.
The applicant says that whilst it was open to the Authority to find, as it did, that the applicant could find some employment in an area other than his home area, and therefore did not meet the refugee criteria for that reason, the Authority did not consider whether the discrimination he might face in seeking employment in an area other than his home area might in and of itself render the relocation unreasonable in the sense of impracticable. That issue was dispositive. That is, if the Authority concluded that the applicant could not reasonably, in the sense of practicably, relocate, then Australia’s complementary protection obligations would be enlivened and he would be entitled to a visa.
It is submitted for the applicant that nowhere in the Authority’s reasons does one find:
… the Authority doing what the delegate did in assessing whether the barriers to finding employment, even if he’s not literally unable to find employment, are such as to make relocation unreasonable. … the delegate dealt with that issue, so obviously the applicant had a fair bit to say about that at the hearing, and he maintained that point in his submissions to the authority … and it was by reference to the discrimination being faced for persons such as him in accessing employment.
… there’s a big difference between finding some employment so that you don’t perish and … the employment which you find being beneath your dignity so as to make relocation unreasonable. It would – for example, for a person who has certain skills, certain passions, certain education, it may well be undignified for them to have to be a cleaner or live a life which is beneath them. That’s what the reasonableness question incorporates.[4]
[4] Transcript at pages 5 to 6.
In response, the Minister submitted that when regard is had to the way in which the applicant’s case was advanced, and the obligations on the Authority in providing reasons for its decision, no error emerges.
The Minister submits that the way in which the Authority was required to consider the reasonableness of relocation is dependent on the way in which the applicant put his claims. Moreover, it is submitted for the Minister that in this instance, the applicant’s claim was that he would be unable to obtain employment and therefore would be unable to subsist and that this also made it, not only unsafe to relocate to those areas, but also unreasonable to relocate.
The Minister further submits that having found that the applicant would be able to find employment outside of his home region, and therefore be able to subsist, it was open to the Authority to rely upon these findings in considering whether or not it was reasonable in the sense of practicable for the applicant to relocate to one of those areas.
CONSIDERATION
It is not in dispute that in considering whether Australia’s complementary protection obligations are engaged, and, in particular, whether the decision maker is satisfied that there is a real risk that the applicant would suffer significant harm, the decision maker must consider:
(a)whether there is a place in the applicant’s home country where he or she would not be at risk of significant harm; and
(b)if so, whether it is reasonable, in the sense of practicable, that the applicant relocates to that place.
In this instance, there is no dispute that the Authority concluded that the applicant would not be at risk of significant harm if he were to relocate to Islamabad, Rawalpindi or Karachi. The question at hand is whether, in considering whether it would be reasonable for the applicant to relocate to those alternative towns, the Authority erred.
In SZATV v Minister for Immigration [2007] HCA 40, the plurality (Gummow, Hayne and Crennan JJ) said, at [24]:
… What is ‘reasonable’ in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality.
In MZACX v Minister for Immigration and Border Protection [2016] FCA 1212 (‘MZACX’) at [26], the court said:
Clearly enough, whether relocation to a particular place is reasonable can raise different issues to those raised by the questions whether a visa applicant faces a ‘fear of persecution’. Unlike fear of persecution, the reasonableness of relocation imports a question of practicability, the boundaries of which are different from fear of persecution for a Convention reason and in the Convention sense, even though the question of persecution in the Convention sense remains ….
Ultimately, at [34], the court in MZACX concluded:
The nature of the inquiry as to the reasonableness of relocation depends on the particular objections raised by the visa applicant to relocation … These objections set the parameters for the Tribunal’s inquiry … The Tribunal’s task is to assess the reasonableness of relocation as regards the applicant by reference to the issues raised by him and on the other material before the Tribunal …
The assessment of whether relocation is reasonable in the sense of practicable, is therefore to be determined within the parameters of the claims made by the applicant as to why it would not be reasonable for her or him to relocate to another part of the country, and to any other issues relevant to the reasonableness of relocation which may arise from the material before the Tribunal or Authority.
It is therefore necessary to consider what claims the applicant made and how the Authority dealt with those claims. In doing so, it is important not to read the Authority’s reasons with too keen an eye for error.[5]
[5] Minister for Immigration and Ethnic Affairs [1996] HCA 6.
In the submissions to the Authority dated 10 May 2019, the applicant’s representatives made submissions as to why the applicant could not safely relocate to Karachi, Lahore, Rawalpindi or Islamabad.[6]
[6] Court book at pages 205 to 206.
After correcting what the applicant’s representative saw as errors in the delegate’s analysis on relocation, the applicant’s representative went on to say:
We also note that under s 5J(5) ‘serious harm’ may include the capacity to subsist is threatened because of significant economic hardship, or denial of access to basic services, or denial of the ability to earn a livelihood of any kind. It is well-established tribalism is a ubiquitous feature of Pakistan society, particularly for Pashtuns. In this context we submit without familial or tribal support that [the applicant] would not be able to find sustainable employment or affordable accommodation in other parts of Pakistan. We submit the mere presence of other Shi’ites in the urban centres suggested by the DHA delegate, does not indicate a ready and sufficient support network to effectively assist [the applicant]. In Australia, [the applicant’s] primary employment is pushing trolleys for a supermarket in Yass, NSW. He has no employment experience in Pakistan and no family living outside of Parachinar. Despite a qualification he has never had the opportunity to use it in terms of securing employment. In this context we also refer to DFAT which provides:
Turis relocating from Parachinar and Kurram Agency to access adequate services face difficulties finding employment outside of Parachinar due to ethnic and religious profiling and are generally discriminated against in employment selection processes.
…
We submit all these factors including the fact Pakistan continues to suffer from sectarian conflict, combine to make relocation unreasonable, impractical and unsafe for [the applicant], and a real chance exists he is at risk of coming to serious and significant harm, in the foreseeable future, should he be forced to relocate within Pakistan.
It is apparent from this extract, and I find, that the applicant relied upon these submissions in respect of both his refugee claim and his claim under the complementary protection provisions. There are a number of aspects to the applicant’s claims regarding his employment opportunities other than in his home area. They include that:
(a)without family or tribal support the applicant would not be able to find sustainable employment;
(b)this difficulty could not be ameliorated simply by the presence of other Shi’ite Muslims in a particular area;
(c)he has no employment experience in Pakistan;
(d)he has no family outside of Parachinar; and
(e)country information suggests that Turis relocating outside of Parachinar face discrimination and difficulties finding employment due to ethnic and religious profiling.
The Authority addressed the applicant’s employment claims in the context of the refugee criteria at paragraphs [26] and [27] of its decision record. Relevantly, whilst the Authority accepted that the DFAT report referred to difficulties for Turis finding employment and that they are generally discriminated against in employment selection processes, it went on to note that ‘Turis generally prefer moving to Shia areas, and that Islamabad, Rawalpindi, and Karachi are among the preferred migration destinations’. The Authority also noted that this country information also provided that living in enclaves mitigated societal discrimination. The Authority also considered the applicant’s personal circumstances and that he had not appeared to suffer discrimination when he had previously lived in Rawalpindi. After considering these matters, at paragraph [27] the Authority concluded:
… I am not satisfied that the applicant would be unable to find employment or otherwise subsist in Islamabad, Rawalpindi or Karachi.
At paragraph [35], the Authority went on to consider whether the applicant met the complementary protection criteria. In that context, the Authority said:
I have also concluded that the applicant does not face a real chance of harm for any other reason. Based on the same information, I find that the applicant does not have a real risk of suffering significant harm in Islamabad, Rawalpindi or Karachi.
(Emphasis added)
The reference to the ‘same information’ is, read fairly, a reference to the information before the Authority, including the information provided by the applicant and the country information, to which the Authority had earlier referred. I do not accept the applicant’s submission that the analysis at paragraph [27] is only relevant to the refugee assessment and that the complementary protection section of the Authority’s reasons are dealt with separately as a new issue.
Having determined that the applicant did not face a real risk of suffering significant harm in those areas, the Authority was then required to consider whether, having regard to the applicant’s particular circumstances, it would be reasonable, in the sense of practicable, for the applicant to move to Islamabad, Rawalpindi or Karachi. It is correct that the Authority does not expressly consider the applicant’s employment opportunities if he were to return to Pakistan and relocate to one of the three nominated areas. However, a fair reading of the Authority’s reasons at paragraph [37] indicate that it did consider his employability. It noted that he was currently employed, that he had previously been supported by his family when he lived and studied in Rawalpindi and had not indicated that that support could not be provided again, whilst he settled back into life in Pakistan. The Authority then addressed the applicant’s health, including his psychological health. The Authority then discussed the steps the applicant had taken in Australia to find employment and that he appeared to be managing his mental health.
At paragraph [39], the Authority also referred to country information, and at paragraph [40] the Authority said:
Taking into account all the applicant’s circumstances and the information before me, I am satisfied that in the circumstances it is reasonable for the applicant to relocate to Islamabad, Rawalpindi or Karachi, an area of the country where there is not a real risk that he will suffer significant harm.
(Emphasis added)
The reference to the applicant’s circumstances and the information before the Authority includes the claims made by the applicant about the discrimination that the applicant might face in finding employment without family support and connection outside of Parachinar.
When read as a whole and in context, it is apparent that the Authority considered the claims as framed by the applicant. That is, that if he had to return to Pakistan and relocate to Islamabad, Rawalpindi or Karachi, he would find this difficult without family and tribal support and with the added complexity of the discrimination against Turis’ in those areas. The Authority did not accept this was the case.
That finding was open to the Authority on the material before it.
The Authority did not fail to consider the applicant’s claim.
CONCLUSION
For these reasons, no error is established, and the applicant’s application should be dismissed with costs. I therefore make the orders set out at the commencement of these written reasons.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Associate:
Dated: 29 October 2024
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