CLN16 v Minister for Immigration
[2019] FCCA 1125
•1 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CLN16 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1125 |
| Catchwords: MIGRATION – Protection visa – decision of Administrative Appeals Tribunal – whether Tribunal overlooked claim – whether Tribunal conflated two limbs of relocation test – claim overlooked – jurisdictional error – writs issued. |
| Legislation: Migration Act 1958 (Cth), ss.36, 65, 91R, 476 Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Act 2014 (Cth) |
| Cases cited: AHK16 v Minister for Immigration & Border Protection [2018] FCAFC 106 SZMCD v Minister for Immigration & Citizenship (2009) 174 FCR 415 |
| Applicant: | CLN16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 404 of 2016 |
| Judgment of: | Judge Kendall |
| Hearing date: | 11 February 2019 |
| Date of Last Submission: | 11 February 2019 |
| Delivered at: | Perth |
| Delivered on: | 1 May 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr A McBeth |
| Solicitors for the Applicant: | Clothier Anderson |
| Counsel for the First Respondent: | Ms A Ladhams |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The applicant have leave to rely upon the affidavit of Catherine Jane Farrell affirmed 4 February 2019.
The name of the first respondent be amended to “Minister for Home Affairs”.
A writ of certiorari issue quashing the decision of the Second Respondent dated 8 August 2016.
A writ of mandamus issue directed to the Second Respondent requiring it to determine the Applicant’s application according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 404 of 2016
| CLN16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 8 August 2016.
The Tribunal’s decision affirmed a decision of a delegate of the then Minister of Immigration and Border Protection (the “Minister”) made on 30 March 2015 to refuse to grant the applicant a Protection visa (the “visa”) under s.65 of the Migration Act 1958 (Cth) (the “Act”). In effect, the Tribunal found that, although the applicant would face harm if he returned to his home area of the Swat valley in Pakistan, it would be reasonable for the applicant to relocate to another part of Pakistan.
The applicant has now appealed that decision to this Court. In effect, he argues that the Tribunal failed to deal with one of the reasons given by the applicant as to why it would not be reasonable for the applicant to relocate and the Tribunal applied the incorrect test to the reasonableness of relocation.
Background
The factual background to this matter was not in dispute and was accurately summarised in written submissions filed by both the applicant and the Minister. The Court adopts the summary provided in those submissions. They provided, relevantly, as follows.
The applicant is a national of Pakistan and a registered nurse.
The applicant first arrived in Australia on a student visa on 27 January 2012. His aim was to study nursing in Australia.
The applicant returned to Pakistan for a brief period between 14 June 2013 to 20 July 2013. He then returned to Australia on a student visa which was to expire on 15 March 2014.
The applicant applied for a protection visa on 13 March 2014.
In his application for the protection visa, the applicant claimed to have a well-founded fear of persecution, principally because he feared harm from the Taliban and from Pakistani military intelligence.
In relation to the Taliban, the applicant claimed that he had been kidnapped by the Taliban and forced to administer first aid to injured Taliban militants. He also claimed that the Taliban demanded that he join them, then threatened to kill him when he refused and sent threatening letters to his family. He claimed that this latter incident revealed that the Taliban were aware of his study in Australia and that they had proclaimed a verdict of death (which would be carried out by Taliban followers).
In relation to the applicant’s claim to fear of harm from Pakistani military intelligence, this concern was based primarily on the applicant’s fear that the assistance he gave the Taliban (when he was kidnapped) would cause military intelligence to conclude that he was affiliated with the Taliban. In this regard, the applicant claimed that another man who had been kidnapped by the Taliban at the same time as the applicant had subsequently been taken away by Pakistani military intelligence and was still missing.
Following an interview with the Minister’s delegate (on 26 February 2015), the applicant’s representative provided written submissions regarding several aspect of the applicant’s claims.
On 30 March 2015, the delegate refused to grant the applicant the protection visa. The delegate was satisfied the applicant would face a real chance of harm if he returned to his home area but determined that he could relocate elsewhere in Pakistan.
The applicant then applied to the Tribunal for a review of that decision.
Written submissions were forwarded to the Tribunal on his behalf on 31 May 2016. The migration agent provided the Tribunal with country information and a further written submission subsequent to the hearing. The applicant was invited, and attended, a hearing with the Tribunal on 9 June 2016. At the hearing he was assisted by an interpreter and his migration agent.
On 8 August 2016, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.
The Tribunal found the applicant’s evidence to be credible and consistent.
The Tribunal accepted that the applicant had a well-founded fear of persecution on the basis of his real and imputed anti-Taliban political opinions and his membership of certain particular social groups if he returned to his home area of the Swat Valley. The Tribunal also found that the applicant faced a real risk of significant harm for the purposes of the complementary protection criteria if he were to return to the Swat Valley.
However, the Tribunal did not accept that the applicant had a real chance of serious harm or a real risk of significant harm due to Taliban activity across all of Pakistan. The Tribunal stated that it had considered the applicant’s particular circumstances and considered that he would be able to find work of some kind in Pakistan if he were to relocate to a large urban centre such as Karachi, Lahore or Islamabad. The Tribunal noted that the applicant has recent work experience and holds formal qualifications and is familiar with Urdu and English languages. The Tribunal found that it would be reasonable for the applicant to relocate to an area in Pakistan were there would not be an appreciable risk of the serious harm which he faces in his home area.
The Tribunal also considered the complementary protection provision and found that there was not a real risk that the applicant would suffer significant harm as a necessary and foreseeable consequence of his removal from Australia to Pakistan. In making this finding, the Tribunal found for the purposes of s.36(2B)(a) of the Act and for the reasons it had already given, that relocation to another part of Pakistan would be safe and reasonable for the applicant.
The Tribunal’s decision is discussed in more detail below.
The applicant filed an application for judicial review in this Court on 2 September 2016. This was within the 35 day statutory time limit.
The applicant filed an amended application on 23 July 2018 pursuant to order 3 of the orders made by His Honour Judge Lucev on 8 June 2017.
Three grounds of review were detailed in that amended application.
At the hearing of this matter before this Court on 11 February 2019, the applicant abandoned ground 2 in his amended application and pressed grounds the 1 and 3. These provide as follows:
Ground 1
The Tribunal failed to give genuine and proper consideration to the reasonableness of relocation, in that it failed to deal with one or more of the reasons given by the applicant as to why it would not be reasonable for him to relocate.
Particulars
a)The Tribunal acknowledged at [55] that the applicant referred to his lack of family support outside of Swat valley, but did not deal with that issue in considering whether or not it would be reasonable for the applicant to relocate.
b) The Tribunal failed to deal with the applicant’s claim that he would have difficulty relocating because people were afraid of those who came from a war zone or “fighting area” and kept their distance from them, and that he would be identified as coming from a such an area because people would look at his national ID card.
Ground 3
The Tribunal applied the incorrect test to the reasonableness of relocation, in that it failed to assess whether it would be unreasonable in the circumstances of the applicant to expect the applicant to relocate to an area where there was a risk of harm that fell short of the threshold of a real chance of serious harm or a real risk of significant harm.
Particulars
a) The Tribunal acknowledged that there were reported instances of Pashtuns being harassed and attacked in urban areas, but found that the risk did not amount to a real chance or real risk of harm.
b) The Tribunal failed to assess whether it would be reasonable in the applicant’s circumstances for the applicant to relocate to a place where he would face such a risk.
Tribunal Decision
Relevant to these proceedings is the issue of relocation within Pakistan. In this regard, it is noted that the Tribunal found that the applicant’s home area was Swat District, Khyber Pakhtunkhwa, Pakistan (“Swat”) (Court Book “CB” 383 at [8]). The applicant’s family remain in this area. The Tribunal also noted that that the applicant had lived in Karachi, Islamabad, Sindh Province and Sambat Chum Matta between June 2006 and his departure to Australia in January 2012 (CB 384 at [11]).
The Tribunal began by recounting the matters and evidence of the applicant proffered in support of his claims and the questions the Tribunal put to the applicant about those claims (CB 384-402 at [12]-[29]). Much of this part of the Tribunal’s decision copies verbatim and at considerable length the statutory declaration of the applicant dated 1 May 2014 that was submitted to the delegate (which contains the applicant’s claims for protection), written submissions forwarded to the delegate on 5 March 2015 from the applicant’s migration agent and written submissions received prior to and after the Tribunal hearing from the applicant’s migration agent.
The Tribunal summarised the applicant’s claims as follows:
30.The applicant’s protection claims are detailed in the Tribunal’s summary of his written claims, submissions provided by his representative and its summary of his sworn oral evidence set out above. In brief, he claims that he faces a real chance of serious harm from members of the Pakistani Taliban for reasons of being imputed with a political opinion as being antiTaliban. He claims that he faces serious harm, including physical assault and murder, at the hands of the Pakistani Taliban and its agents by virtue of his activities in refusing to join the Taliban, working with a Danish NGO, his employment as a nurse and as a medical professional who has studied in a western country.
31.It was submitted that the applicant fears harm from the Taliban for reasons of his membership of the particular social groups nurses in Pakistan/ nurses in Taliban-controlled areas of Pakistan and/or medical personnel who have assisted the Pakistani Taliban.
The Tribunal then:
a)found the applicant’s evidence to be “consistent and clear” and supported by the country information (CB 402 at [32]);
b)accepted that the applicant was kidnapped in 2008 and forced to provide assistance to wounded Taliban members, that he was approached and requested to join the Taliban on occasion and that he received threatening correspondence from the local Taliban in his home area of Swat (CB 403 at [33]-[34]);
c)accepted that the applicant’s fear of harm from the Taliban for reason of his membership of the particular social group of nurses in Pakistan/Taliban controlled areas of Pakistan and/or medical personnel who have assisted the Pakistani Taliban/health professionals who studied in a Western country and/or his political opinion or imputed political opinion of opposing the Taliban on the basis of his participation as a health worker and his refusal to join them” was a “Convention reason” (CB 403 at [37]);
d)noted it had had regard to various sources of country information relating to the prevailing security and human rights conditions in Swat, and in Pakistan more generally, and extracted or summarised various parts of that country information to observe that a cautious approach was adopted when considering and assessing the applicant’s risk of harm in light of the country information (CB 403-405 at [38]-[44]);
e)accepted there was a real chance that the applicant would suffer serious harm of a kind suggested in s.91R of the Act, and that this harm would be systematic and discriminatory for reasons of his real and imputed anti-Taliban political opinions and his membership of the particular social groups referenced above if he was to return to Swat (CB 405 at [45]-[46]);
f)found that the level of state protection available to the applicant from the Pakistani authorities in Swat would not meet the requisite level of protection which citizens are entitled to expect (CB 405-406 at [47]- [48]);
g)noted that it had discussed relocation with the applicant at the Tribunal hearing and allowed further submissions on this issue (CB 406 at [49]);
h)accepted that country information indicated that the security situation varied greatly within different parts of Pakistan and that there are a number of areas that remain relatively free from the threat of militant sectarian and politically motivated violence (CB 407 at [52]);
i)did not accept that the applicant was of any interest, adverse or otherwise, to the Pakistani military intelligence based on evidence from the applicant that the military intelligence had only asked about him on one occasion and the applicant was registered with the Pakistan Nursing Association (the “PNA”) and provided his home address and the places at which he worked to the PNA;
j)considered that if the Pakistani military intelligence were interested in the applicant, they could have located him at any time by checking with the PNA (CB 407 at [53]);
k)noted that the applicant had a passport and departed Pakistan on two occasions and returned to Pakistan on one occasion without being stopped by the Pakistani authorities. In this regard, the Tribunal acknowledged that an initial inquiry was made of the applicant but that he remained in Pakistan for almost two years without further inquiries being made;
l)found that, in light of the available evidence, it did not accept that the applicant was of any interest to Pakistani military intelligence or authorities and did not accept that there was a real chance that he would face serious harm from the Pakistani military intelligence or the authorities (CB 407 at [53]);
m)referred to the delegate’s decision that found it was reasonable, in the sense of practicable, for the applicant to relocate to larger urban areas such as Lahore and Islamabad (CB 407-408 at [54]);
n)summarised the applicant’s submission in response as follows (CB 407-408):
55.In response, it was submitted that notwithstanding the improved security situation in Karachi and throughout Pakistan, there have been terrorist incidents and targeted attacks, and that terrorists from his area have gone to Karachi and elsewhere, and that having now had a specific threat against him he would not be safe in any place. It was argued in respect of the improved situation in Karachi due to the Rangers that this was a political operation and it could be removed at any time and the situation would revert to what it was previously. He referred to his lack of family support outside of Swat valley and discrimination faced by Pashtuns. In written submissions his representative provided further information of attacks throughout Pakistan, including in Karachi, Lahore and Islamabad comparing it to the DFAT assessment regarding the risk of violence in KPK and Karachi.
56.It was submitted that the applicant was vulnerable to adverse attention from the Taliban outside Swat as if he returned to Pakistan to live in a city in Punjab or Sind he would live in part of the Pashtun/Swat/KPK diaspora. In his interaction with other members of that community for employment, accommodation and social purposes he would have to account for himself in terms of his identity and where he is from. He cannot be expected to lie, even if that were practical. Any Taliban members or supporters who have been displaced or have moved out of KPK or FATA for other reasons will also live in these communities. As noted previously, SATP estimates the Taliban to have between 30,000 and 35,000 members. That is a lot of people, even in a country with a population of 180 million people, and there is a real chance of the applicant becoming known to them if he is returned to Pakistan to live in the Pashtun/Swat/KPK diaspora in Punjab or Sind;
o)noted and summarised country information provided by the applicant which referred to recent Taliban attacks throughout Pakistan;
p)stated that these needed to be seen in the context of Karachi, Lahore and Islamabad all having large populations and that many of the attacks have been targeted at non-Sunnis (CB 408 at [57]-[58]). In particular, the most recent Department of Foreign Affairs and Trade (“DFAT”) report suggested that the Taliban was a loose network of Sunni militant groups and that attacks throughout Pakistan were targeted against security forces and institutions, political rivals, civilian infrastructure and non-Sunni minorities, and was of a low level of cohesion and integration to target locally known persons of adverse interest, like the applicant, outside of his home region (CB 408 at [59]);
q)accepted that the applicant faced a real chance of serious harm in Swat arising from his background and profile as a nurse and a person who has refused to join and assist the Taliban, together with his profile as a medical professional who has studied in a western country;
r)did not accept that the real chance or real risk existed across Pakistan generally;
s)considered, in the circumstances, that there was not a real chance that the Taliban would pursue the applicant outside Swat, if it had the resources or not;
t)considered the activities he had engaged to be confined to a “local level” not a “high profile level”;
u)concluded that the Taliban would not seek to trace the applicant to one of Pakistan’s larger urban cities (CB 409 at [61] and [64]);
v)considered the applicant’s claim that he would be targeted across Pakistan for reason of his actual and imputed political opinion against the Taliban; however; in light of the assessment that the majority of Pakistan’s population, including the government, is against, and does not support, the Taliban, the applicant would not be required to suppress his past and anti-Taliban beliefs to avoid persecution (CB 409 at [62]);
w)acknowledged and accepted that the applicant was of Pashtun ethnicity and could be identified as such but concluded that there was not a real chance or real risk he would be harmed because of his Pashtun ethnicity (CB 409-410 at [63] and [65]-[67]);
x)based on all the evidence and country information, did not accept the applicant had a real chance of serious harm or a real risk of significant harm due to Taliban activity across all of Pakistan;
y)found that there are locations in Pakistan where the applicant could relocate as a nurse/health care worker with anti-Taliban opinions where he does not face a real chance of serious harm or a real risk of significant harm (CB 410 at [68]);
z)considered whether it is reasonable in “all the circumstances” for the applicant to internally relocate within Pakistan;
aa)found, having regard to the applicant’s particular circumstances, that he would be able to find work of some kind in Pakistan if he were to relocate to a large urban centre such as Karachi, Lahore or Islamabad. The Tribunal noted, in particular (CB 410-411):
69.… It finds the applicant has recent work experience in Australia and also holds formal qualifications as well as being familiar with relevant languages such as Urdu and English. It finds he has experience both in Pakistan and in Australia in finding employment and accommodation. In considering the reasonableness of relocation, the Tribunal considered the applicant’s claim of fearing harm elsewhere in Pakistan.
70.It also considered his fear of harm outside of his local area on the basis of his background and profile either singularly or cumulatively, as a nurse/health worker, having worked for a NGO, as an anti-Taliban supporter for refusing to join them, imputed Taliban supporter by Pakistan authorities, his profile as a medical professional who had studied in a Western country and his Pashtun ethnicity. The Tribunal finds that these factors do not give rise to any unreasonableness or practical realities such that he would not be able to relocate, or that relocation in all his circumstances would be unduly harsh or otherwise unreasonable.
71.Having found that the applicant faces a real chance of serious harm now or in the reasonably foreseeable future in his home area of Swat in KPK for reasons of his antiTaliban political opinion and membership of particular social groups, the Tribunal finds that it would be reasonable for him to relocate to an area in Pakistan where there would not be an appreciable risk of the serious harm which he faces in his home area; and
bb)finally, considered the complementary protection provision and found as follows: (CB 411):
73.In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), the Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to his receiving country, there is a real risk that he will suffer significant harm.
74.Whilst the Tribunal accepts that the applicant may face a real risk of significant harm if he is removed from Australia and returns to his home area of Swat District in KPK, for the reasons set out in detail above, the Tribunal has found that relocation to another part of Pakistan is both safe and reasonable in all the circumstances of the applicant. The Tribunal has found that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that he will suffer significant harm. Subsection 36(2B)(a) therefore provides that in such circumstances it is taken that there is not a real risk that the applicant will suffer significant harm if he is removed to the relevant receiving country.
Judicial Review Application
By way of an amended application filed on 23 July 2018, the applicant now seeks judicial review of the Tribunal’s decision.
This proceeding is brought pursuant to s.476(1) of the Act. To obtain assistance from this Court, the applicant must show jurisdictional error on the part of the Tribunal.
This matter was heard on 11 February 2019. The applicants were represented by Mr McBeth of counsel. The Minister was represented by Mr Ladhams as solicitor advocate. The Court acknowledges the strong advocacy skills of Mr McBeth and Ms Ladhams and thanks both lawyers for their considerable assistance with this matter.
The Court has received, and reviewed, a Court Book numbering 427 pages.
On 25 July 2018, the Court received written submissions from the applicant. On 17 January 2019, an outline of written submissions was received from the Minister.
On 4 February 2019, an affidavit of Ms Catherine Jane Farrell, affirmed 4 February 2019, was filed. Ms Farrell’s affidavit annexed a transcript of the hearing before the Tribunal (the “Transcript”). Ms Farrell’s affidavit was filed outside the time ordered by the Court for the applicant to file any supporting affidavits. However, there was no objection from the Minister in relation to the Court receiving the Transcript. There will be an order granting the applicant leave to rely on Ms Farrell’s affidavit.
The Court has also reviewed the relevant Court transcript of the hearing.
As noted above, the Judicial Review Application contained three grounds of review. At hearing the applicant abandoned ground 2 and advanced only ground 1 and ground 3. Both of these remaining grounds of review are assessed below.
Ground 1
Ground 1 provides:
1.The Tribunal failed to give genuine and proper consideration to the reasonableness of relocation, in that it failed to deal with one or more of the reasons given by the applicant as to why it would not be reasonable for him to relocate.
Particulars
a)The Tribunal acknowledged at [55] that the applicant referred to his lack of family support outside of Swat valley, but did not deal with that issue in considering whether or not it would be reasonable for the applicant to relocate.
b) The Tribunal failed to deal with the applicant’s claim that he would have difficulty relocating because people were afraid of those who came from a war zone or “fighting area” and kept their distance from them, and that he would be identified as coming from a such an area because people would look at his national ID card.
Applicant’s submissions
The applicant’s submissions in relation to ground 1 can be summarised as follows:
a)the Tribunal acknowledged that the applicant had “referred to his lack of family support outside Swat”;
b)the impact of a lack of family support is well accepted as a factor that is to be considered to determine whether it would be reasonable for a person to relocate;
c)having noted that the applicant had made that submission, the Tribunal was obliged, as part of its statutory task of review, to consider that submission within the broader context of assessing whether it would be reasonable for the applicant to relocate;
d)this was an issue that clearly arose from the material before the Tribunal;
e)the Tribunal was not only cognisant of it but referred to it in its decision;
f)this was an issue that would undoubtedly affect the reasonableness of proposed relocation;
g)a failure to consider this aspect of the applicant’s claim and assess it in determining whether it would be reasonable for the applicant to relocate amounts to a jurisdictional error;
h)further, the Tribunal made no mention of the applicant’s claim that he would have difficulty in relocating to an urban area in Pakistan because people would recognise that he was “from the fighting area” whenever his national identity card had to be checked, and that people would be scared and would keep their distance from him;
i)it is clear from the Tribunal Transcript that a claim is being made advanced that there is a distinction between discrimination against Pashtuns generally and discrimination against Pashtuns coming from Swat and that the applicant has a specific fear that people are afraid to associate with, and keep their distance from, people who (like him) come from Swat;
j)the Transcript shows that the Tribunal did not engage with that submission or recognise that the claim was made; and
k)this claim is relevant to the reasonableness of relocation because, if true, it would prevent any real integration and would make it much more difficult to secure any of the kinds of services that might require interaction with the local people.
The Minister’s submissions
The Court notes that the Minister’s submissions were filed prior to the filing of the Tribunal Transcript. Despite this, Ms Ladhams was able to address any issues arising in oral submissions to the Court.
The Minister’s submissions were as follows:
a)it is well-established that the ‘objections’ to relocation raised by an applicant set a framework for the Tribunal’s consideration of whether it is reasonable for an applicant to relocate within his or her country of citizenship;
b)the applicant had a number of opportunities to make submissions or to give evidence in relation to why it was not reasonable for him to relocate to another part of Pakistan;
c)the ‘objections’ (or submissions that could be interpreted as objections) raised by the applicant are as follows:
i)in his application for a protection visa dated 13 March 2014, the applicant was not asked whether he could relocate within Pakistan and did not address this question directly. However, the applicant did indicate that he frequently swapped jobs and travelled to avoid the Taliban, but that he was tracked every time he swapped jobs or location (CB 20);
ii)in his statutory declaration dated 1 May 2014, the applicant said that he was unable to relocate within Pakistan as he had attempted to do this several times in the past with his employment history, and this had resulted in him continuously being harassed and being unable to maintain long term employment as a nurse (CB 118);
iii)in a submission dated 4 March 2015 and prepared by the applicant’s migration agent, the applicant made submissions as to why he could not relocate. In summary, the reason the applicant said that he could not relocate is because the risk of harm extends throughout the country (CB 151-152);
iv)the delegate recorded in his/her decision that the applicant said that if someone is a target, the person cannot hide in Pakistan from the Taliban (CB 186);
v)in a submission to the Tribunal dated 31 May 2016 and prepared by the applicant’s representative, the applicant addressed the delegate’s decision in relation to the reasonableness of relocation and said:
·there is no place in Pakistan where the applicant would not face a real chance of persecution. This submission was made with reference to country information (CB 245-249)
·if he were to live in a city in Punjab or Sind he would live in part of the Pashtun/Swat/KP diaspora and, in his interaction with other members of the community for employment, accommodation and social purposes, he would need to account for himself in terms of his identity and place of origin. The Taliban live in these areas and there is a real chance that the applicant will become known to someone in the Taliban (CB 247);
·the applicant cannot be expected to deny or eschew his past or his professional beliefs to avoid persecution in the diaspora (CB 247); and
·the applicant has a discrete fear of discrimination as a Pashtun if he were to be relocated to the Pashtun/KP/Swat diaspora (CB 250); and
vi)in a further submission to the Tribunal dated 8 July 2016, the applicant reiterated his submission that he would face a well-founded fear of harm throughout Pakistan (CB 291);
d)from this summary it is clear that the applicant’s objections to relocation for the most part focused on his fear of harm. The only objection raised by the applicant in his written documents that was not based on a fear of harm was a general fear of discrimination as a Pashtun;
e)in ground 1, the applicant has identified 2 specific objections to relocation that he says were raised by him and not considered by the Tribunal;
f)the first consideration that the applicant says the Tribunal failed to take into account is that the applicant had a lack of family support outside Swat;
g)the applicant has cited [55] of the Tribunal reasons as evidence of the applicant raising this issue. The Tribunal noted at [54] that it had put various personal characteristics of the applicant to him in the course of discussion about relocation, as well as his past residence in Karachi, his past employment in Islamabad and Sindh province, and country information regarding the improved security situation throughout Pakistan. The Tribunal then said:
55.In response, it was submitted that notwithstanding the improved security situation in Karachi and throughout Pakistan, there have been terrorist incidents and targeted attacks, and that terrorists from his area have gone on to Karachi and elsewhere, and that having now had a specific threat against him he would not be safe in any place. It was argued in respect of the improved situation in Karachi due to the Rangers that this was a political operation and it could be removed at any time and the situation would revert to what it was previously. He referred to his lack of family support outside of Swat valley and discrimination faced by Pashtuns. In written submissions his representative provided further information of attacks throughout Pakistan, including in Karachi, Lahore and Islamabad comparing it to the DFAT assessment regarding the risk of violence in KPK and Karachi;
h)it is clear from this paragraph that the source of the alleged objection is the applicant’s oral evidence or submissions at the Tribunal hearing;
i)the Tribunal’s description that the applicant ‘referred’ to a lack of family support outside of Swat valley is insufficient to draw an inference that the applicant said or meant that it would be unreasonable for him to relocate to another part of Pakistan because of a lack of family support;
j)all that can be relevantly read into the Tribunal’s reasons at [54] and [55] is that, in the context of a discussion that included the applicant’s past residence and employment in other parts of Pakistan, the applicant said that he did not have family support outside of Swat valley;
k)for the applicant to say “One of the factors in returning to Swat was because I had family there,” is a very different thing than saying “It is unreasonable for me to relocate to another part of Pakistan because I would not have the family support in another part of Pakistan”;
l)the Tribunal’s description of the applicant’s comments does not indicate that the applicant said it would unreasonable for him to relocate because of this lack of family support;
m)the only way for the Court to be able to properly assess whether the applicant raised such an objection to relocation would be for the Tribunal to consider the exact words of the applicant and the exact context in which they were uttered;
n)the second objection allegedly raised by the applicant but not considered by the Tribunal is that the applicant would have difficulty relocating because people would recognise that he was ‘from the fighting area’ when he had to show his identity card (see [26] of the applicant’s submissions); and
o)the claim about being from a fighting area is “part and parcel” of the applicant’s claims to fear discrimination on the basis of being a Pashtun. This claim was subsumed into a finding of greater generality.
Consideration
Before the Court can determine if the Tribunal failed to give proper and genuine consideration to the reasonableness of relocation, it must first consider if the applicant raised the objections he now says he raised as objections to relocation, or whether it was implicit from the materials before the Tribunal that the particular objections to relocation were matters the Tribunal ought to have considered and addressed. In the Minister’s submissions these specific objections were not raised and were not evident on the material or were addressed more generally in assessing whether harm would arise if relocation were to occur.
The evidence shows that the applicant referenced his family in his statement of claims for protection. He claimed, in particular, that he would return to see his family on study breaks and that his family had received letters threatening harm against him.
It is apparent from the applicant’s statement of claims that, on many occasions – in particular, on cultural and religious dates – he returned to his family home.
The delegate found that the applicant could relocate to another part of Pakistan safely and it would be reasonable that he do so. In written submissions provided to the Tribunal prior to the hearing and prepared by the applicant’s migration agent, issue was taken with the country information the delegate relied upon to determine that it was safe for the applicant to relocate elsewhere in Pakistan.
The submissions to the Tribunal relevant to relocation ran to almost four pages (CB 245-250).
Relevantly, the Transcript evidences as follows:
INTERPRETER: I went to that district because it was really rural and it very far of - from the city and between the mountains and my auntie had also some influence there, so she found the job for me. It was away from the army and away from the Taliban. I was thinking I can pass some time there.
…
MEMBER: So you’ve returned to the Suwat to an area that was cleared from the Taliban and you lived safely for some period?
INTERPRETER: It was not completely safe but target killing was continuing there but it was not in that extent. I didn’t have much option really to move around and I was sick and tired from that much movement. I was thinking that I will have some relatives around me and at the time also I started applying for the student - to give the student application for a student visa.
(Transcript, p.10)
At [17]-[18] the Tribunal noted the applicant’s evidence as follows:
17… It was a rural area and away from the Taliban and Pakistani Military intelligence so he felt safe here. He also wanted to be surrounded by family…
18. The applicant indicates his parents, sister and 4 brothers remain in their village in Swat…
The applicant’s migration agent also made a number of submissions on relocation at the close of the hearing.
In relation to jurisdictional error, the applicant refers to the following portion of the Tribunal decision as a reference to the “objection to relocation” that the Tribunal should have considered in detail when determining whether it was reasonable to relocate:
55. In response, it was submitted that notwithstanding the improved security situation in Karachi and throughout Pakistan, there have been terrorist incidents and targeted attacks, and that terrorists from his area have gone to Karachi and elsewhere, and that having now had a specific threat against him he would not be safe in any place. It was argued in respect of the improved situation in Karachi due to the Rangers that this was a political operation and it could be removed at any time and the situation would revert to what it was previously. He referred to his lack of family support outside of Swat valley and discrimination faced by Pashtuns. In written submissions his representative provided further information of attacks throughout Pakistan, including in Karachi, Lahore and Islamabad comparing it to the DFAT assessment regarding the risk of violence in KPK and Karachi.
(Emphasis added)
It has long been held that the answer to whether it is reasonable in the sense of practicability for an applicant to relocate depends upon the framework set by particular objections raised to relocation: SZMCD v Minister for Immigration & Citizenship (2009) 174 FCR 415 at [124] per Tracey and Foster JJ. This approach to focusing on “particular objections” has more recently been discussed in AHK16 v Minister for Immigration & Border Protection [2018] FCAFC 106, wherein Mortimer, Moshinsky and Thawley JJ stressed:
29 Reliance on an “objection” as a basis for a contention of jurisdictional error may be problematic, although at a colloquial level the use of the term is understandable. An “objection” made by a visa applicant to relocation has no conceptual or statutory status in the task of determining whether the causal element of Art 1A of the Refugees Convention is satisfied. As Mortimer J noted in MZANX, matters raised by a visa applicant (whether by way of “objection” or otherwise) are likely to form part of the framework in which a decision-maker will need to assess the safety and reasonableness/practicability of a person returning to a particular part or parts of her or his country of nationality. However, as her Honour also noted in MZANX, the decision-maker’s task is not completed by ticking off a checklist of matters raised by a visa applicant. Too much focus on “objections” tends to encourage this kind of “checklist” approach, which detracts from an appreciation of the overall task of the decision-maker, and from the Court’s task on judicial review to determine whether the state of satisfaction was lawfully formed: see MZYTS at [46].
(Emphasis added)
Here, the Court is satisfied that the issue of family support was an issue raised by the applicant (whether by way of “objection” or otherwise) which formed part of the framework in which the Tribunal needed to assess the safety and reasonableness/practicability of the applicant returning to areas of Pakistan away from his home area. The Tribunal specifically acknowledges that the applicant had “referred to his lack of family support outside Swat”. The Tribunal also notes (at [17]) that being “surrounded by family” was something of importance to the applicant.
The impact of a lack of family support is well accepted as a factor that is to be considered to determine whether it would be reasonable for a person to relocate: SZATV v Minister for Immigration & Citizenship (2007) 233 CLR 18 at [81] per Kirby J (“SZATV”).
Having noted that the applicant had made that submission, the Tribunal was obliged to consider that submission within the broader context of assessing whether it would be reasonable for the applicant to relocate.
Here, the question then is: did the Tribunal engage with the issue and give sufficient consideration to it?
In SZATV at [81] Kirby J stated:
…In some circumstances, having regard to the age of the applicant, the absence of family networks or other local support, the hypothesis of internal relocation may prove unreasonable. In each case, the personal circumstances of the applicant; the viability of the propounded place of internal relocation; and the support mechanisms available if an applicant has already been traumatised by actual or feared persecution, will need to be weighed in judging the realism of the hypothesis of internal relocation.
(Emphasis added)
Here, the Tribunal had regard to the applicant’s circumstances generally.
The Tribunal (at [10]-[11]) acknowledged that the applicant came to Australia on a student visa in 2012 and that he had moved and relocated around Pakistan several times.
The applicant claimed that he had, several times, tried to relocate in Pakistan but because of his employment history he was continuously harassed and unable to maintain long term employment (CB 118).
The applicant indicated to the Tribunal at the hearing that it would not be difficult for him to find a job (Transcript, p.8).
Further, at [69]-[70] the Tribunal referred to the applicant’s personal characteristics and relevant history (including his qualifications, language abilities and experience in obtaining employment and accommodation).
The applicant also stated that what had previously prevented him from relocating was harassment that meant he could not maintain employment.
It is apparent (at [71]) that the Tribunal looked at these circumstances and the support mechanisms available to the applicant (a mixed ethnic and religious community providing greater access to services and state protection than rural or smaller urban areas) to determine the reasonableness of relocation.
What is missing, however, is any clear assessment of whether the issue of a lack of family support would cause difficulty for the applicant. It cannot be said here that the Tribunal took it into consideration what it noted (at [55]) that the applicant had raised, namely that family support was an issue. It may well be that the Tribunal, in assessing the applicant’s history in Pakistan (which arguably evidences that he had previously relocated without significant family support) overrode any concerns it might have about a lack of family support.
The Court cannot, however, rely on hypotheticals. If that was the conclusion, it needed to be said. There is simply no assessment of the issue here. The issue of family isolation is raised but is simply left “floating”, without any clear connection to the rest of the evidence that was assessed and with no connection to the issue of relocation generally. It is not sufficient to simply say “having regard to all of the evidence” and hope that that phrase captures an issue that has not actually been substantively assessed and either rejected or accepted as an issue of concern. If the issue and the evidence advanced in support of it (however minimal) is not of significant weight or deemed not to be material, that needs to be stated. Otherwise, the consideration clearly required is lacking.
This is unacceptable and points to an error on the part of the Tribunal.
Moving to the second claim that the applicant contends the Tribunal failed to consider when determining if it was reasonable to relocate, the Transcript confirms that the applicant did expressly make the claim:
MEMBER: But that does discrimination prevent you from obtaining employment or being able to subsist?
INTERPRETER: Yes, could be possibly also for job in employment so will be discriminated against Pushtan’s and also in preventing house and accommodation to find and to stay somewhere so they will look to (indistinct) to national ID card so they will check the address and so from where you are coming, where is your permanent address, they can recognise you easily so that this person is coming from that war area, from the fighting area, from the trouble area and people are scared and they are afraid from those people. They are (indistinct), they are keeping distance from them, from that Pushtan’s.
MEMBER: Is there anything else you’d like to tell me?
(Emphasis added)
The applicant contends that it is clear from the final remark of the Tribunal that it has completely overlooked or failed to acknowledge or consider the applicant’s objection on the basis of being a Pashtun from the war area.
The Court disagrees.
At [66]-[67] the Tribunal considered that the applicant did not have a real chance or a real risk of harm on the basis of his Pashtun ethnicity.
At [67] the Tribunal states:
The Tribunal notes the applicant’s concern that there is a perception that the Pashtun population in Pakistan supports the Taliban and other insurgent groups and this would affect him…
On the basis of country information, the Tribunal then determines, in the final sentence at [67], that there was not a real chance or real risk the applicant faces harm because of his Pashtun ethnicity.
Although the Tribunal did not express the claim in the terms the applicant stated (ie, that he was from a “fighting area” and “people are afraid” of people like him), what is stated in the opening sentence of [67] expressly acknowledges this claim.
Here, the Court agrees that this claim was subsumed into the finding in the final sentence of [67]: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593 at [47] per French, Sackville and Hely JJ.
For the reasons outlined above, the Court finds that ground discloses jurisdictional error. The applicant’s claim as to the need for family support is relevant to the reasonableness of relocation. That issue was not canvassed by the Tribunal. That oversight constitutes an error of the sort this Court is charged with identifying and addressing.
Ground 3
Ground 3 reads as follows:
3. The Tribunal applied the incorrect test to the reasonableness of relocation, in that it failed to assess whether it would be unreasonable in the circumstances of the applicant to expect the applicant to relocate to an area where there was a risk of harm that fell short of the threshold of a real chance of serious harm or a real risk of significant harm.
Particulars
a) The Tribunal acknowledged that there were reported instances of Pashtuns being harassed and attacked in urban areas, but found that the risk did not amount to a real chance or real risk of harm.
b) The Tribunal failed to assess whether it would be reasonable in the applicant’s circumstances for the applicant to relocate to a place where he would face such a risk.
Applicant’s submissions
In relation to ground 3, the applicant submitted:
a)the Tribunal at [67] noted the applicant’s concern that Pashtuns are perceived to be supporters of the Taliban and other insurgent groups. It considered country information, noting instances of violence and targeting of Pashtuns;
b)the Tribunal then concluded that the country information did not “demonstrate that the chance or risk of being harmed as a Pashtun in locations such as Karachi, Islamabad, Rawalpindi or Lahore is any more than a remote chance, and not one that could be determined to be a real chance or real risk of occurring. After considering all the evidence and based on confirmation, the Tribunal does not accept there is a real chance or real risk the applicant faces harm because of his Pashtun ethnicity;”
c)in the context of complementary protection, the Tribunal did not engage in any further reasoning but merely adopted its reasoning relating to the refugee assessment that it was reasonable for the applicant to relocate;
d)having found that ethnically targeted violence against Pashtuns existed in the places to which relocation was being contemplated, but that the risk did not amount to a real chance of serious harm for the purposes of the refugee assessment or a real risk of significant harm for the purposes of the complementary protection assessment, the Tribunal did not engage in any further consideration of whether it was reasonable in the applicant’s circumstances for him to relocate to a place where that risk persisted; and
e)in so failing, the Tribunal failed to complete its task in relation to the reasonableness of relocation for the applicant and thereby fell into the same jurisdictional error.
Minister’s Submissions
The Minister, in response, submitted:
a)the Tribunal has not conflated the two issues central to the reasonableness of relocation in a way that amounts to jurisdictional error in its consideration of the applicant’s claim to fear discrimination on the basis of his Pashtun ethnicity;
b)at [66] and [67] (CB 410), the Tribunal has considered the concerns raised by the applicant in relation to discrimination on the basis of his Pashtun ethnicity, and country information which addresses the treatment of Pashtuns;
c)the Tribunal in these paragraphs has also reached its findings in relation to the first issue; namely that the applicant does not face a real risk or a real chance of harm as a result of his Pashtun ethnicity;
d)at [69] to [71] (CB 410-411), the Tribunal has considered whether it would be reasonable for the applicant to relocate within Pakistan. In considering this issue, the Tribunal again considered the applicant’s claim to fear harm or discrimination on the basis of his Pashtun ethnicity. The critical findings of the Tribunal are at [70] where the Tribunal said:
It also considered his fear of harm outside of his local area on the basis of his background and profile either singularly or cumulatively, as a nurse/health worker, having worked for a NGO, as an anti-Taliban supporter for refusing to join them, imputed Taliban supported by Pakistan authorities, his profile as a medical professional who had studied in a Western country and his Pashtun ethnicity. The Tribunal finds that these factors do not give rise to any unreasonableness or practical realities such that he would not be able to relocate, or that relocation in all his circumstances would be unduly harsh or otherwise unreasonable;
e)two things are clear from this paragraph:
i)first, it is clear from the words in bold that the Tribunal understood that the question to be considered and the test to be applied in this context was different to the test in relation to the first issue of whether the applicant would face a real chance of serious harm or a real risk of significant harm in an area to which he might relocate;
ii)second, it is clear from the underlined words that the Tribunal considered whether it might be unreasonable for the applicant to relocate on account of his Pashtun ethnicity. The Tribunal’s reasoning at [70] can relevantly been read as a finding that the applicant’s Pashtun ethnicity does not give rise to any unreasonableness or practical reality that would make it unduly harsh or unreasonable for him to locate;
f)the country information and evidence of the applicant referred to in [66] and [67] is capable of supporting the finding at [70], as well as the findings at [66] and [67];
g)the Tribunal’s reasons at [70] should be read in the context of the whole decision; and
h)the Tribunal’s failure to repeat at [70] the country information or circumstances of the applicant that it had already addressed in its reasons does not amount to jurisdictional error in this matter, and the different conclusions reached by the Tribunal at [66] and [67] on the one hand and [70] on the other hand confirm that the Tribunal has understood the different nature of the inquiry at each of the 2 stages of determining whether it would be reasonable to relocate.
Consideration
Although not entirely clear, it appears that the applicant raises two concerns in ground 3:
a)the Tribunal has misunderstood and misapplied the legal test for reasonableness within the context of relocation; and
b)the Tribunal’s analysis in relation to whether the applicant is owed complementary protections is flawed because it simply relies on its findings in relation to whether the applicant is owed refugee protections, and little more.
In relation to the first of these issues, it is agreed by both parties that in considering the internal relocation principle and whether it was reasonable for this applicant to relocate within Pakistan, the Tribunal was required to consider two factors:
a)whether there was an area within Pakistan where the applicant would not have a well-founded fear of persecution for a Convention reason, and/or would not face a real risk of significant harm: SZATV, CID15 v Minister for Immigration & Border Protection [2017] FCA 780 at [32] (“CID15”); and
b)whether it would be reasonable, in the sense of practicable, in all the circumstances for this particular applicant to relocate: SZATV at [31], CID15 at [32].
As the applicant applied for his protection visa prior to the amendments made by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Act 2014, the Tribunal was required to consider the “reasonableness” of relocation under both ss.36(2)(a) and (aa) of the Act.
In CID15 at [32], Moshinsky J summarises the two stage test as follows:
Thus, there are two aspects to the internal relocation principle that need to be considered. The first is whether there is a place (or places) in the country of nationality where the applicant for refugee status would not have a well-founded fear of persecution on a Convention ground. The second is whether it would be reasonable in the circumstances for the person to relocate to that place (or one of those places)…
Here, the Tribunal summarised the relevant legal principles as follows: (CB 406-407):
51.It is well settled that the focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country: Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at 440-1. Depending upon the circumstances of the particular case, it may be reasonable for a person to relocate in the country of nationality or former habitual residence to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution, and where it is reasonable, under all the circumstances, in the sense that it is practicable, to expect him to seek refuge in another part of the country. ‘Reasonable’ will depend upon the particular circumstances of the applicant and the impact of relocation upon that person within the person’s country. However, whether relocation is reasonable is not to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, political and socio-economic rights. The Convention is concerned with persecution in the defined sense, and not with living conditions in a broader sense.
At [66]-[67], the Tribunal states:
66. ... DFAT have commented that there are anecdotal reports of some Pashtun migrants experiencing difficulties obtaining identity cards and that the broader Pashtun community in Lahore has reported harassment from local police authorities at checkpoints, in the Pashtun-dominated Shalom Market and in Pashtun settlements. The harassment has increased since the implementation of the National Action Plan to counter terrorism in December 2014. There is also ethnic Punjabi resentment about the pecuniary success of Pashtun migrants in Lahore and the fact that Punjab is hosting an unprecedented number of temporarily displaced persons. DFAT state they are not aware of any of these problems occurring in Islamabad or Rawalpindi. The Tribunal does not however, consider any of these problems constitute either serious harm or significant harm or that they provide the basis for finding that his chance or risk of serious harm or significant harm is more than remote.
67.... There is information that the authorities have harassed some Pashtuns in locations outside KPK and FATA. The city of Karachi is also identified as a location where there is violence against Pashtuns, though this often relates to political conflicts of popular Pashtun parties such as the PPP and ANP, opposed by the MQM. The applicant has not claimed to have ever been involved in any political activities in the past or that he will become involved in Pashtun political activities in the future. In other locations in Pakistan, reports of violence against Pashtuns are limited and isolated. The Tribunal does not accept that the country information demonstrates that Pashtuns are being targeted, although there are some rare instances. The Tribunal considered that country information does not demonstrate that the chance or risk of being harmed as a Pashtun in locations such as Karachi, Islamabad, Rawalpindi or Lahore is any more than a remote chance, and not one that could be determined to be a real chance or real risk of occurring. After considering all the evidence and based on the country information, the Tribunal does not accept there is a real chance or real risk the applicant faces harm because of his Pashtun ethnicity.
The Court finds that the Tribunal here has effectively disposed of the first limb of the reasonableness test, determining that there are areas within Pakistan where the applicant could live and not have a well-founded fear of persecution for a Convention reason and/or would not face a real risk of significant harm: per SZATV.
At [69]-[70] the Tribunal then addressed the reasonableness of the relocation to those areas for the applicant in the following terms:
69.The Tribunal has considered whether it is reasonable in all the circumstances for the applicant to internally relocate within Pakistan. Having regard to the applicant’s particular circumstances, it finds that he would be able to find work of some kind in Pakistan if he were to relocate to a large urban centre such as Karachi, Lahore or Islamabad. It finds the applicant has recent work experience in Australia and also holds formal qualifications as well as being familiar with relevant languages such as Urdu and English. It finds he has experience both in Pakistan and in Australia in finding employment and accommodation. In considering the reasonableness of relocation, the Tribunal considered the applicant’s claim of fearing harm in elsewhere in Pakistan.
70. It also considered his fear of harm outside of his local area on the basis of his background and profile either singularly or cumulatively, as a nurse/health worker, having worked for a NGO, as an anti-Taliban supporter for refusing to join them, imputed Taliban supporter by Pakistan authorities, his profile as a medical professional who had studied in a Western country and his Pashtun ethnicity. The Tribunal finds that these factors do not give rise to any unreasonableness or practical realities such that he would not be able to relocate, or that relocation in all his circumstances would be unduly harsh or otherwise unreasonable.
71.Having found that the applicant faces a real chance of serious harm now or in the reasonably foreseeable future in his home area of Swat in KPK for reasons of his antiTaliban political opinion and membership of particular social groups, the Tribunal finds that it would be reasonable for him to relocate to an area in Pakistan where there would not be an appreciable risk of the serious harm which he faces in his home area.
The Court agrees with the assessment of these paragraphs provided by the Minister in his written submissions at [54]-[56].
In the Court’s view the Tribunal has not conflated the two stages of the relocation inquiry. In addition to the Tribunal’s accurate summary of the relevant legal principles at [51], it is evident that at [69] the Tribunal assessed the reasonableness of the applicant’s relocation with reference to his individual circumstances to determine his capacity and ability to find employment and accommodation etc. The Tribunal specifically refers to “factors” (ie, as linked to the applicant’s particular circumstances) which might give rise to harm and found that these factors did not give rise to “practical realities such that he would not be able to relocate.” The use of the term “practical realities” again re-enforces the view that the Tribunal appreciated the distinction between the two enquiries.
Nor can it be said that the Tribunal erred by relying on its findings in relation to the first stage to determine the second stage of the relocation inquiry.
In this regard, the Court notes the decision of Mortimer J in MZZZA v Minister for Immigration & Border Protection [2015] FCA 594 (“MZZZA”) as follows:
39. However, the fact it found the risk of harm to be remote is also relevant to the Tribunal’s satisfaction about the reasonableness of relocation for the appellant. There is nothing impermissible about the Tribunal using a factual finding about the remoteness of harm, as it did in each paragraph, as the basis to form an opinion about the reasonableness of relocation given the particular risk the appellant had claimed he feared...
…
41. In my opinion, these two paragraphs, like the others, disclose that the Tribunal has used its findings on the first stage as part of its consideration about the reasonableness of relocation, but there is nothing impermissible about this. I do not consider the Tribunal approached its task on the basis that if it determined the appellant did not have a well-founded fear of persecution in Islamabad (for example) that would inevitably make his relocation reasonable. This is what the appellant’s submissions amounted to. In my opinion the Tribunal’s reasons disclose it appreciated the matters it needed to consider were distinct, both qualitatively and substantively. In each of these paragraphs it addressed the subject matter of the appellant’s objections to relocation based on his fears of harm, and it did so both through the prism of well-founded fear of persecution, and then by asking whether, if there was a risk of harm less than serious harm, and less than a real chance of such harm occurring, it was nevertheless reasonable to expect him to relocate. There is nothing legally impermissible in this approach.
42. The Tribunal was not precluded from using its finding that there was a remote prospect of the appellant suffering harm for the claimed reasons as part of its grounds for deciding relocation was reasonable.
…
44.… the last sentence of [54] makes it tolerably clear the Tribunal then turns its attention to the appellant’s “particular circumstances”, meaning the reasonableness of relocation based not so much on circumstances existing in Islamabad and Rawalpindi as on matters personal to the appellant relocating to those places.
Given the structure of the Tribunal’s decision here and the paragraphs preceding, it is clear the Tribunal did not conflate the two limbs. It first determined if there was a chance or risk of serious or significant harm in the areas identified as areas that the applicant could relocate to. It then considered the reasonableness of the applicant relocating to those areas and did so on the basis of concerns that were particular/specific to him.
It cannot be said here that an error is evident on the part of the Tribunal in relation to the use of the two stage test for relocation.
That does not mean, however, that no error is evident in the decision as whole. As noted above in relation to ground 1, the Court has determined that the Tribunal failed to address a protection claim advanced by the applicant in relation to his need for family support. That error, in effect, “infects” the rest of the judgment, thereby making the analysis provided in relation to relocation generally unsound.
Specifically, when the Tribunal states that “it is reasonable in all the circumstances for the applicant to internally relocate within Pakistan” and “having regard to the applicant’s particular circumstances,” the conclusions drawn are not based on all of the particular circumstances because the Tribunal has failed to address the applicant’s objection to relocation on the basis of his claimed lack of family support. In that regard, the Court repeats what it has said above in relation to ground 1.
Further, although the submission was not entirely clear, the applicant seemed to also draw attention to the fact that the Tribunal relied upon its earlier findings to conclude, at [74], that the applicant did not meet the complementary protection criterion in s.36(2)(aa) of the Act. It was suggested that this also constituted an error (although it was not entirely clear to the Court why it was being suggested that that was the case).
It is evident that the Tribunal has relied upon the earlier findings. At [74] the Tribunal stated:
Whilst the Tribunal accepts that the applicant may face a real risk of significant harm if he is removed from Australia and returns to his home area of Swat District in KPK, for the reasons set out in detail above, the Tribunal has found that relocation to another part of Pakistan is both safe and reasonable in all the circumstances of the applicant. The Tribunal has found that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that he will suffer significant harm. Subsection 36(2B)(a) therefore provides that in such circumstances it is taken that there is not a real risk that the applicant will suffer significant harm if he is removed to the relevant receiving country.
The question here is whether what the Tribunal has done constitutes jurisdictional error.
In APS16 v Minister for Immigration & Border Protection [2016] FCA 1422 at [31], Bromwich J found no error in the Tribunal relying upon the reasoning and findings in relation to relocation under s.36(2)(a) of the Act in addressing relocation to avoid harm under the complementary protection provision (an application for special leave to appeal was subsequently refused by the High Court: APS16 v Minister for Immigration & Border Protection [2017] HCASL 36).
Here, for the reasons outlined above, there is no error in the Tribunal’s approach to the two stage reasonableness test in relation to the complementary protection criterion.
The Court finds that it was unnecessary for the Tribunal to repeat the findings it had already made (ie, that it was reasonable to relocate) in circumstances where the Tribunal had outlined in detail the applicant’s particular circumstances at [70]: SZSRD v Minister for Immigration & Border Protection [2013] FCCA 1714.
No error can be seen in so far as it is contended that the Tribunal cannot rely on earlier findings under s.36(2)(a) in assessing the complementary protection criterion under s.36(2)(aa).
That does not mean, however, that no jurisdictional error arises in relation to the Tribunal’s approach to the evidence it actually does rely on when assessing the complementary protection criterion. Again, the evidence assessed does not include the applicant’s claim to require family support – a claim that the Court has found should have been analysed and addressed by the Tribunal. In that regard, the Court repeats and relies on its findings above in relation to ground 1.
Hence, while no error arises in relation to ground 3 as it is articulated by the applicant, it is evident that the Tribunal’s conclusions as a whole in relation to both ss.36(2)(a) and (aa) of the Act are flawed due to the Tribunal’s failure to address the applicant’s claim that he requires family support.
Conclusion and Orders
The Minister seeks an order that the name of the first respondent be amended to read “Minister for Home Affairs”. The Court will make an order accordingly.
There will be also be an order granting the applicant leave to rely upon the Transcript.
For the reasons outlined above, the Court find that Tribunal’s decision of 8 August 2016 affirming a decision of a delegate of the Minister not to grant the applicant a protection visa is affected by jurisdictional error.
The Tribunal’s decision is set aside and the matter is remitted to the Tribunal for determination according to law.
I certify that the preceding one hundred and seven (107) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 1 May 2019
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