CYF16 v Minister for Immigration
[2017] FCCA 3108
•14 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CYF16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 3108 |
| Catchwords: MIGRATION – Protection visa application – review of Administrative Appeals Tribunal decision – whether the Tribunal erred in finding that it was reasonable to relocate within Pakistan – whether serious harm is the only kind of harm that could affect “reasonableness” – whether the Tribunal erred by failing to consider whether a remote risk of harm could impact upon the reasonableness of relocation – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2), 65 The Convention Relating to the Status of Refugees, 1951 as amended by the Protocol Relating to the Status of Refugees, 1967 |
| Cases cited: MZACX v Minister for Immigration & Border Protection [2016] FCA 1212 MZZJY v Minister for Immigration & Border Protection [2014] FCA 1394 |
| Applicant: | CYF16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2749 of 2016 |
| Judgment of: | Judge Smith |
| Hearing date: | 14 November 2017 |
| Date of Last Submission: | 14 November 2017 |
| Delivered at: | Sydney |
| Delivered on: | 14 November 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr B Mostafa |
| Solicitors for the Applicant: | Fragomen |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $6,600.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2749 of 2016
| CYF16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Delivered Extempore and Revised)
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 1 September 2016. The Tribunal affirmed the decision of a delegate of the Minister to refuse to grant the applicant a protection visa.
The applicant is a citizen of Pakistan who arrived in Australia on 9 August 2012 and lodged an application for a protection visa on 20 November 2012. A delegate of the Minister refused that application on 6 March 2013 and the then Refugee Review Tribunal[1] (RRT) affirmed that decision on 23 July 2013.
[1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).
That decision was ultimately set aside by consent, by orders made by Logan J in the Federal Court of Australia on 26 February 2016. The matter was remitted to the Tribunal which had by then taken over the functions of the RRT. The Tribunal then conducted the hearing on 4 August 2016, and made its decision on 1 September 2016.
Consideration
The ground in this application for judicial review is narrow and perhaps best identified in the way it is in the written submissions of the applicant. In [1] of his submissions, the applicant provides a summary of his case:
a.the applicant is from the Orakzai agency, within the Federally Administered Tribal Areas (FATA) in Pakistan. The Tribunal treated the FATA as the applicant’s home area;
b.the applicant claimed to fear harm as a Shia Muslim. Though the (sic) submitted that his religious status was now agnostic, he claimed that he would be identified as a Shia Muslim in Pakistan for reasons including his name and tribe;
c.the Tribunal found that he faced a risk of harm in his home area based on “on a combination of his Shia religion and that he would be identified as a Shia person and an imputed political opinion that he could be perceived to be opposed to Taliban and Shia militants and his Pashtun ethnic extraction”;
d.the Tribunal found, however, that the applicant could relocate to “an area such as Hyderabad”;
e.in doing so, the Tribunal erred. The applicant had submitted that relocation to Hyderabad was not reasonable given the possibility of violence on religious grounds. There was material before the Tribunal that supported the view that there was a risk of such harm in Hyderabad. The Tribunal found that the applicant did not face a real risk of such violence in Hyderabad, but failed to consider whether risk of a lower degree than a real risk bore upon the reasonableness of the applicant relocating.
(Emphasis in original/Citations omitted)
The applicant’s case relies upon two decisions, the second of which is MZACX v Minister for Immigration & Border Protection [2016] FCA 1212 (MZACX). It applied the earlier decision of Davies J in MZZJY v Minister for Immigration & Border Protection [2014] FCA 1394 (MZZJY). The critical passages in MZACX, upon which the applicant relies, are [35] and [48], which I set out below:
35In considering the possibility of relocation within a visa applicant’s country of nationality, the first question that arises is whether, objectively, there is no appreciable risk of the occurrence of the feared persecution in another part of that country. If there is an appreciable risk, then the issue of relocation for a particular applicant is concluded. If, however, there is no appreciable risk of the feared persecution at some other place in the country of nationality, the issue of relocation can be further explored. At this point, as indicated earlier, the question is whether the relocation of the visa applicant to that place is “reasonable”, in the sense of “practicable”, having regard to the particular circumstances of the applicant and the impact upon the applicant of relocation to that place. In answering this question, it may be relevant to include different or lower risks of harm faced by the applicant at a suggested place in assessment of the reasonableness of relocation in the particular circumstances of the case. Issues of risk of harm arise at these two stages of inquiry, although each stage of the inquiry has a different focus. Jurisdictional error may arise where a Tribunal conflates the two stages of the inquiry, as MZYQU 206 FCR 191 and MZZJY [2014] FCA 1394 illustrate.
48The fact that a risk of serious harm, or that a person may be the victim of ethnically motivated crime, is remote does not answer the question whether it is reasonable, having regard to all the circumstances of a visa applicant, that the applicant face that risk. Further, the Tribunal did not directly address the appellant’s claim that he would face a risk of harm, particularly during attendance at Shia Muslim mosques or participation in religious festivals. In considering whether or not it was reasonable for the appellant to relocate to Islamabad or Rawalpindi, the Tribunal was obliged, as Davies J said in MZZJY [2014] FCA 1394 at [21], to consider the practical realities for him.
See also MZZJY at [21].
I note, in passing, that I harbour some reservation about the proposition relied upon by the applicant. Why, it might be asked, would protection be available under the Convention[2] when there is no well-founded fear of persecution in a particular part of the country of nationality? Nevertheless, I accept that the proposition is supported by a binding authority and I need say no more about it.
[2] The Convention Relating to the Status of Refugees, 1951 as amended by the Protocol Relating to the Status of Refugees, 1967.
It is clear that there are two stages of the inquiry, as explained by Kenny J in MZACX. First, whether there is objectively, an appreciable risk of harm in a particular area or country of nationality or of residence; and secondly, whether it is reasonable, in the sense of practicable, for a putative refugee to relocate to that area. However, the matters relevant to those two aspects are not necessarily distinct. The Tribunal may rely upon the existence of the risk of harm and the nature of that harm, when considering the reasons of relocation. In MZZZA v Minister for Immigration & Border Protection [2015] FCA 594, Mortimer J said at [42], that:
42The 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. …
Her Honour continued to say that she did not see that the reasoning in MZZJY, at [21], was inconsistent with that approach, but rather reflected an assessment of the particular reasoning of the case before her Honour. While I was taken to a number of other decisions, some of which distinguished the decision in MZZJY and MZACX, it will ultimately be a question for an assessment of the way in which the Tribunal made its findings and addressed the issues before it.
As I have noted in the summary of the applicant’s claims, the Tribunal accepted that the applicant had a well-founded fear of persecution in his home area of the FATA: see, in particular, [68] and [69] of its reasons. The Tribunal then turned to the question of relocation. It dealt with this at [70] through to [88] of its reasons and it did so quite clearly in two parts.
First, from [70] through to [79], it assessed whether or not there was an appreciable risk or, put another way, a well-founded fear of persecution in other areas of Pakistan other than the applicant’s home area. The Tribunal concluded at [79], that the applicant would not face a real chance of serious harm if he were to relocate to an area such as Hyderabad in Pakistan on the basis of his religious views or his Pashto ethnic extraction, or for a number of the other reasons put forward by him, including the fact that he had lived in a Western country prior to his hypothetical return to Pakistan.
The Tribunal at [80] through to [88] of its reasons then considered the second question that arises in respect to relocation, namely, the reasonableness of that relocation.
At [80], the Tribunal dealt with the security situation in various areas in Pakistan. In [81] and [82], it dealt with the questions of the cost of living in other areas, as well as the prospect of obtaining employment, and the obligation to support the applicant’s family. At [83], it dealt with the question of whether the applicant’s family would relocate with him if he were to return to Pakistan, as well as the question of employment and accommodation in areas such as Hyderabad.
In [84] the Tribunal then turns to the question of risk of harm. Given the importance of that paragraph to the resolution of this case, I set this out below:
The Tribunal has also considered the issue of state protection in Pakistan if the applicant were to return to Pakistan either now or in the reasonably foreseeable future. In that regard the Tribunal notes the DFAT thematic report for Shias in Pakistan which indicates that the Department assessment is that Pakistani authorities are broadly willing to protect Shia communities but as indicated the Tribunal does not accept the applicant would participate in religious activities outside his home area in Pakistan. The DFAT country report in referring to state protection notes that the Department assessment is state protection in Pakistan is limited by resource shortages, personal means and in some cases political will. However as indicated given the Tribunal’s assessment of the applicant’s profile the risk to the applicant would appear to be greater, based on country information, if he participated in religious activities in terms of the Shia Muslim faith outside of his home area and given the applicant would not participate in such religious activities unless he was forced to, the Tribunal’s assessment is the applicant does not face such a risk outside his home area in the FATA. The country information that has been referred to elsewhere in these reasons also suggests that the security position overall in the FATA region is improving.
In my view, in [84] of its reasons, the Tribunal was expressly dealing with the submission that it would not be reasonable for the applicant to relocate to Hyderabad, amongst other areas, because of communal violence on religious grounds. It was said, in [20] of the written submissions dated 22 August 2016 submitted to the Tribunal on behalf of the applicant, that that would be case and there was material put before the Tribunal that supported that proposition.
In [84], the Tribunal first deals with the question of state protection and expressly deals with the question as pertained to Shia communities. It was submitted at one point that the Tribunal, in this paragraph, did not deal with the submission that the applicant would be perceived, regardless of his agnosticism, to be a Shia in Pakistan for reasons including his name, tribe and the societal pressure from his community to practice Islam, the last of which the Tribunal had already rejected. I do not agree with that submission. Having accepted that the applicant was neither agnostic in terms of practicing his religion, there is no other real basis for it, considering how he might be impacted as a Shia other than that he might be imputed with such a faith by reason of the matters put forward by him. Indeed, those were expressly referred to by the Tribunal, at [75] of its reasons.
It was also submitted that [84] fell short of a proper consideration of the question of relocation because it did not analyse the extent of risk that might fall between zero and “a real chance”. I do not consider that that was an error. The Tribunal was considering in [84], what the particular circumstances were that might affect the applicant were he to return to Pakistan and, in particular, were he to return to a place such as Hyderabad. There was nothing in the claims made by the applicant, or the other material, that required it to take a more granular approach than that which it did.
Having assessed the risk in the context of reasonableness, the Tribunal then summarised its findings at [85]. In particular, it noted:
… after considering the totality of the evidence and the country information (the Tribunal) finds that it would be reasonable, in the applicant’s particular circumstances, for him to relocate to another part of Pakistan where there was no appreciable risk of the occurrence of the persecution that he fears in his home area. …
In my view, the reference to the applicant’s particular circumstances, given the structure of the Tribunal’s reasons as I have briefly described above, must include a reference to the findings at [84], which deal with the risk of harm that was said that might arise if the applicant were to relocate to Hyderabad.
The reference to appreciable risk of harm, is a reference to its earlier finding as I have noted that it made, prior to turning to the reasonableness of relocation: see, for example, [79] of its reasons. Clearly, part of the Tribunal’s reasoning in respect of the reasonableness of relocation, was affected by and borrowed from its earlier findings. Nevertheless, as Mortimer J explained in MZZZA, there is nothing wrong with that. What would have been wrong would be for the Tribunal to have conflated the two areas of inquiry that arise in respect of relocation. However, in my view, the structure of the Tribunal’s reasons clearly show that it did not fall into that error.
That conclusion is fortified by the balance of [85] of the Tribunal’s reasons, in which it summarises what it had found in respect of the reasonableness in the preceding paragraphs. For example, it refers to the areas of relative safety in Pakistan, which must be a reference back to [84] of its reasons, as well as to the absence of communal network, the ability to find employment and the combination in areas such as Hyderabad or one of the other large towns or cities in the Sindh or the Punjab.
Conclusion
On a proper reading of the Tribunal’s reasons, I am not satisfied that the error asserted by the applicant has been made out. For those reasons I dismiss the application.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 12 December 2017
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