CID15 v Minister for Immigration
[2016] FCCA 3076
•30 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CID15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 3076 |
| Catchwords: MIGRATION – Judicial review – protection visa- internal relocation – real chance test. |
| Cases cited: SZATV v Minister for Immigration and Citizenship & Anor (2007) 233 CLR 17 Chan v Minister for Immigration (1989) 169 CLR 379 |
| Applicant: | CID15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2465 of 2015 |
| Judgment of: | Judge Harland |
| Hearing date: | 9 November 2016 |
| Date of Last Submission: | 9 November 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 30 November 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Wood |
| Solicitors for the Applicant: | Fragomen |
| Counsel for the Respondents: | Mr Hosking |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application filed on 5 November 2015, amended on 22 June 2016 is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $7,206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2465 of 2015
| CID15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a Pakistani national. He is of Pasthun ethnicity. He is a Shia Muslim from the Parachinar in the Kurram Agency and is a member of the Bangash tribe.
The applicant claims he fears harm if he returns to Pakistan from the Taliban because of his religion, ethnicity and political opinion.
The applicant complains that the Tribunal misapplied the real chance test when it found that it was reasonable for the applicant to relocate internally within Pakistan.
Both the delegate and the Tribunal found that the applicant faced a real chance of serious harm if he returned to Kurram Agency because of his religion but found it was reasonable for the applicant to relocate to another region of Pakistan.
The Tribunal accepted that the applicant had experienced problems including violence in his home area but found that this was not because he was specifically targeted but because of the general violence in the area.
The Tribunal referred to country information in support of its finding that the applicant would face a real chance of serious harm by the Taleban or Sunni extremists because of his religion and/or imputed political opinion if he returned to the Kurram Agency. The Tribunal was also satisfied that the government could not provide an appropriate level of state protection in the Kurram Agency.
The leading case on internal relocation is SZATV v Minister for Immigration and Citizenship & Anor (2007) 233 CLR 17. The High Court observed that the text of the Refugees Convention does not refer to internal relocation. Gummow, Hayne and Crennan JJ said at [18] and [19]:
“It also is well settled since Chan v Minister for Immigration and Ethnic Affairs and Minister for Immigration and Ethnic Affairs v Guo [(1997) 191 CLR 559], that the requirement that the “fear” be “well-founded” adds an objective requirement to the examination of the facts and that this examination is not confined to those facts which formed the basis of the fear experienced by the particular applicant.
With these propositions in mind, it will be seen that the matter of "”relocation” finds its place in the Convention definition by the process of reasoning adopted by Lord Bingham of Cornhill in Januzi v Secretary of State for the Home Department. His Lordship said:
The [Convention] does not expressly address the situation at issue in these appeals where, within the country of his nationality, a person has a well-founded fear of persecution at place A, where he lived, but not at place B, where (it is said) he could reasonably be expected to relocate. But the situation may fairly be said to be covered by the causative condition to which reference has been made: for if a person is outside the country of his nationality because he has chosen to leave that country and seek asylum in a foreign country, rather than move to a place of relocation within his own country where he could have no well-founded fear of persecution, where the protection of his country would be available to him and where he could reasonably be expected to relocate, it can properly be said that he is not outside the country of his nationality owing to a well-founded fear of being persecuted for a Convention reason.
The well founded fear test has an objective element to it.[1] It is necessary to consider the individual facts of the case to determine whether or not it is reasonable (in the sense of reasonably practical) for the applicant to relocate within the country. The Tribunal must apply the test as to whether or the applicant has a well-found fear of being persecuted for a convention reason.
[1] See Chan v Minister for Immigration (1989) 169 CLR 379.
This dispute focuses on the proper construction of the Tribunal’s reasons and whether not the Tribunal correctly applied the real chance test.
The applicant’s counsel referred to the comments of Judge Manousaridis in SZUHN v Minister for Immigration & Anor [2016] FCCA 635 (“SZUHN”) at [49] where he said the fact that the assessor referred to the correct test did not necessarily mean the assessor correctly applied that test. The applicant contends that this is what has happened here; the Tribunal has correctly identified the test but has failed to correctly apply it.
In support of this contention the applicant focuses on the wording used in [42], [48]-[50] and [52] of the Tribunal’s decision. The applicant submits that Tribunal erred by impermissibly comparing different parts of Pakistan in determining whether or not it was reasonable for the applicant to relocate to a different area of Pakistan. The Tribunal refers to Shias being “relatively” safe in areas such as Islamabad and gives other examples of where the Tribunal has referred to “relatively free”, and “relative safety”.
The applicant referred to the recent decision of Judge Driver SZVJE and Minister for Immigration & Anor [2016] FCCA 594 (“SZVJE”). At [20] he says:
The test of whether there is a real chance or a real risk of harm is not a relative one. It is not determinative whether the risk in one place is “less severe” than the risk in another place. What matters is the actual level of risk in any particular place.
Judge Driver summarised at [25] the first respondent’s submissions as being:
The Minister submits that this is a case where it can truly be said: “the [Tribunal] starts and finishes with the correct test; it is only some phraseology which provides the basis for a conclusion that [he] had slipped …” . The Minister contends that the applicants’ submissions seek to take one part of the Tribunal’s reasoning out of context.
I am faced with the same argument. I will set out relevant portions of the Tribunal decision.
At [38] the Tribunal says the following:
Given the Tribunal has found that the applicant has a well-founded fear of being persecuted in his home area, the Tribunal has considered if it is reasonable in all his circumstances to relocate to some other part of Pakistan where there is no appreciable risk of the occurrence of the feared persecution. The Tribunal has taken into account the detailed written submissions and the applicant's evidence at the hearing on this question.”
At [42] the Tribunal’s said:
At hearing the Tribunal discussed with the applicant the possibility that he could relocate to a city such as Islamabad or Rawalpindi in Punjab, which reportedly experience lower levels of violence relative to other parts of Pakistan.15 Specifically the Tribunal explained to the applicant that information from DFAT indicated that:
a) Pakistan is a diverse country and the security situation varies greatly from place to place and there are a number of areas within the country which remain free from the threat of militant, sectarian or politically motivated violence, particularly outside of FATA, Khyber Pakhtunkhwa and Balochistan;
b) In most cases there are options available for members of most ethnic and religious minorities, including Shias, to be able to relocate to areas of relative safety elsewhere in Pakistan;
c) In particular, many urban centres such as Islamabad are home to mixed ethnic and religious communities and offer great opportunities for employment, access to service and a greater degree of state protection.
I set out [48] to [52] of the Tribunal’s decision with footnotes removed:
The Tribunal acknowledges that Islamabad and Rawalpindi - for example - are not entirely immune from security incidents, including sectarian violence. Nonetheless, the Tribunal notes that DFAT’s assessment that the security situation in Islamabad (and Lahore) is relatively free from politically-motivated, terrorist and sectarian violence.
As discussed, DFAT reports that Pakistan has struggled with security threats from terrorist, militant and sectarian groups but it is a diverse country and the security situation varies greatly over time and from place to place, with urban centres tending to be more secure than rural areas. It assesses that in many cases there are options available for members of most ethnic and religious minorities, including Shias, to be able to relocate to areas of relative safety elsewhere in Pakistan. It has said that large urban centres such as Islamabad are home to mixed ethnic and religious communities and offer greater opportunities for employment, access to services and a higher level of state protection.
In summary, the Tribunal has considered carefully the question of whether the applicant's fear of Convention related harm is well founded in respect of the entire territory of Pakistan, taking into account the applicant's oral and written evidence and the representative submissions in this respect. In light of the country information and in particular DFAT's advice, the Tribunal does not accept the contention that all Shia are at risk of serious harm from the Taliban or other Sunni militant groups throughout the entire territory of Pakistan for that reason alone. The Tribunal accepts DFAT's advice, as discussed with the applicant at the hearing, that the internal relocation of Shia to avoid sectarian violence occurs with relative frequency, the security situation varies greatly from region to region, and relocation to a large urban centre that is home to mixed sectarian communities may offer a safe have within the territory of Pakistan to a person who would have a well-founded fear of being persecuted for a Convention reason in their home area.
Having considered the applicant's claims individually and cumulatively, the Tribunal is not satisfied that the applicant faces a real chance of serious harm for any of the reasons advanced by the applicant (or his representative) within the entirety of Pakistan now or in the reasonably foreseeable future. The Tribunal finds that the applicant is in a position to relocate to an urban centre such as Islamabad or Rawalpindi, a location where he would not face a real chance of serious harm because of his Shia, Bangash, Pashtun and Parachinar background, or his imputed political opinion.
It has been submitted that in addition to the general threats faced by Shja Muslims throughout the country, relocation to another area may not be "legally accessible" to the applicant because of restrictions on freedom of movement, mainly as consequence of violence by non-state actors and the government's failure to protect the people. The representative refers to the United Sates Department of State's 2013 Report on International Religious Freedom in Pakistan and a March 2012 report by the Human Rights Commission of Pakistan (in relation to events in 2011) in this regard. In the latter report the Tribunal notes that the report identifies parts of Karachi as virtual no go zones for these reasons and areas in Balochistan (not Islamabad or Rawalpindi). The Tribunal also notes (as mentioned)
DFAT's advice in its most recent report on Pakistan that, in respect to internal relocation, in many cases there are options for members of most ethnic and religious minorities to relocate to areas of relative safety elsewhere in Pakistan and that large urban centres such as
Lahore and Islamabad are home to mixed ethnic and relishing community and offer greater opportunities for employment, access to services and a higher level of state protection.
There are numerous references in these paragraphs to “relative” and “lower levels”. Are the use of these phrases indicative of the Tribunal falling into jurisdictional error by comparing the relative safety of different locations within Pakistan? This is the interpretation the applicant urges upon court. The applicant focuses on [42] and says that the wording in that paragraph where the Tribunal refers to the cities in Punjab experiencing lower levels of violence relative to other parts of Pakistan and referring to areas of “relative safety elsewhere” in Pakistan as well as a “greater degree of state protection” clearly indicates that the Tribunal is comparing locations. The applicant acknowledges that the Tribunal is not required to find that a location is completely safe.
Are these terms not referring to comparing relative risks between areas but describing the risk as not being absolute? This is the interpretation the Minister urges which would not result in jurisdictional error by the Tribunal.
The applicant submits that as in the cases of SZUHN and SZVJE the fact that in parts of its reasons the Tribunal uses the right terminology does not equate with correctly applying the real chance test.
The applicant argues that whilst he has described it as a misapplication of the real chance test it could also be seen as an irrational decision but in any event it is not necessary to precisely define the nature of the jurisdictional error. In this regard she draws attention to the comments of Dixon J in Avon Downs Pty Ltd v Commissioner of Taxation (1949) 78 CLR 353 at [360]:
If he does not address himself to the question which the sub-section formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review … If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law.
The Minister agrees with the applicant that the Tribunal was found to have compared areas of Pakistan when applying real chance test that this would be an error and notes the fact that the Tribunal uses the correct language in describing test is not conclusive. The Minister draws attention to the comments of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”) at [271]-[2]:
In other words, the delegate starts and finishes with the correct test; it is only some phraseology in between which provides the basis for a conclusion that she had slipped from an assessment of real chance to an assessment of balance of probabilities.
When the Full Court referred to “beneficial constructions” it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic (35). In that case, a Full Court of the Federal Court (Neaves, French and Cooper 11) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be "concerned with looseness in the language ... nor with unhappy phrasing" of the reasons of an administrative decision-maker (36). The Court continued (37): "The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error."
These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed (38). In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court.
The Minster submits that the Court should give the passages identified above at [15]-[17] a beneficial construction. The Minster says that the use of the word “relative” in [42] was an absolute statement not relative. He says the use of the word “relative” elsewhere in the decision was as an aspect of the country information which was expressed in absolute terms.
The Minister also submits that [50] and [51] of the Tribunal’s decision are not referring to the previous paragraphs but are referring to the country information in the DFAT report.
The Minister points out that there is no dispute that the Tribunal applied the test correctly when considering it in two other contexts in the decision and argues that therefore it is highly unlikely that it would not apply the test correctly again. The Minister argues that when the reasons are considered as a whole it is clear that the Tribunal applied the correct test and that where the Tribunal used the word “relative” or “relatively” in that context it was used to mean “not absolute” or “not absolutely” rather than being used to make a comparison between one place and another.
Counsel for the Minister contrasts the case of SZVJE to the circumstances here and says in the first case the Tribunal only applied the test once and only referred to evidence where it was comparing the relative incidents of violence in Lahore as compared to elsewhere.
The Minister submits that if the Court finds there are two possible constructions of the Tribunal’s reasons then following the principle in Wu Shan Liang the Court should adopt the beneficial construction. I accept this is the approach I must take.
I have carefully considered the arguments put forth by both counsel and the wording of the Tribunal’s decision. When the decision is read fairly as a whole rather than focusing attention on the paragraphs counsel have highlighted, a fair reading of the text supports the Minister’s contention that the use of phrasing including “relatively” is not comparing the safety of urban centres as compared to the current agency or other areas but rather is expressing a view about the urban area being relatively safe as opposed to being absolutely safe. In hindsight it would have been better if the Tribunal had avoided using that language.
The applicant has not established the ground for review. I dismiss the application.
At the end of the hearing the court enquired as to the parties respective positions with respect to costs so as to avoid the parties incurring further costs in attending court for the delivery of judgment. Both confirmed that if successful they sought costs in accordance with the Federal Circuit Court scale of costs.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Harland
Date: 30 November 2016
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