DQJ18 v Minister for Home Affairs
[2018] FCCA 3596
•5 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DQJ18 v MINISTER FOR HOME AFFAIRS & ANOR | [2018] FCCA 3596 |
| Catchwords: MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal erred in its application of the relocation test in s.36(2B)(a) of the Migration Act 1958 (Cth) – whether the Administrative Appeals Tribunal erred in failing to consider an impediment to relocation raised by the applicant – whether any such impediment squarely arose on the material before the Administrative Appeals Tribunal – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.36 |
| Cases cited: ELX17 v Minister Immigration and Border Protection [2018] FCA 1372 |
| Applicant: | DQJ18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1946 of 2018 |
| Judgment of: | Judge Emmett |
| Hearing date: | 20 November 2018 |
| Date of Last Submission: | 20 November 2018 |
| Delivered at: | Sydney |
| Delivered on: | 5 December 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Thomas Liu |
| Solicitors for the Applicant: | D’Ambra Murphy Lawyers |
| Counsel for the Respondents: | Ms Natasha Liang |
| Solicitors for the Respondents: | Mills Oakley Lawyers |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1946 of 2018
| DQJ18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By application filed on 12 July 2018, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal, dated 8 June 2018 (“the Tribunal”), which affirmed a decision of a delegate of the first respondent (“the Delegate”) refusing the applicant a protection visa.
The applicant was represented at the hearing by Mr Liu, of counsel.
By consent, the applicant was given leave to rely on the following amended ground of review and to file in Court an Amended Application withdrawing earlier grounds and relying on the following:
“2. The Tribunal made a jurisdictional error in that it misapplied the relocation test in s36(2B)(a) of the Migration Act 1958 (Cth).
Particulars
The Tribunal failed to consider and impediment to relocation raised by the applicant, or alternatively which squarely arose on the material before the Tribunal, being discrimination against Pashtuns.”
The applicant arrived in Australia on 29 June 2017 on a visitor’s visa and applied for a protection visa on 7 July 2017.
The applicant provided a statutory declaration dated 12 September 2017 in support of his claims.
The applicant stated that he feared returning to Pakistan because he is a Shia from the Bangash tribe and because he is an educated Shia professional. The applicant claimed to fear harm from Sunni extremist groups such as the Taliban, Lej, SSP and Ahle Sunnat Wal Jumait and related Sunni extremist groups. The applicant claimed to fear generalised violence or targeted violence against Shias.
The applicant claimed to be unable to relocate in Pakistan because of a real chance of significant harm for someone of his profile. In relation to relocation, the applicant stated as follows:
“69. It would be unreasonable for me to relocate to another part of Pakistan. I have a wife and child and that makes relocation unreasonable. I do not have any family or friends who live outside of Hangu who could support relocation.
70. It would be unreasonable for me to live in Islamabad because I would not be able to subsist, especially with a wife and child to look after. My employment history is as an accountant and an accountant makes about $20,000 to $25,000 PKR per month in Islamabad/Rawalpindi. However, the cost of a two bedroom apartment in the Shia areas of Islamabad/Rawalpindi costs about $25,000 PKR per month. That is why I could not afford to subsist in Islamabad/Rawalpindi, especially with a wife and child.
71. Islamabad is also not safe for Shias. For example, there have been targeted attacks against Shias and Shia Mosques/Imambargahs and processions have been attacked
72. I am unable to relocate to Lahore and/or Punjab. First, that is because I am a Pashtun. There is harassment and discrimination against Pashtuns by Punjabis, including the police. There are areas where they do not allow rent to Pashtuns. The second reason is because I am Shia and there are threats and harm against Shias.
73. I am unable to relocate to Karachi. That is because I am Shia and Pashtun and because there is a high level of criminality. There have been many attacks against Shias in Karachi this year.”
On 22 September 2017, the Delegate refused the applicant a protection visa on the basis that his fear was not well founded and therefore he was not a person to whom Australia had protection obligations having regard to country information before it.
On 19 October 2017, the applicant lodged an application for review of the Delegate’s decision with the Tribunal.
On 8 June 2018, the Tribunal affirmed the decision under review.
The Tribunal’s decision is accurately summarised in the written submissions of the first respondent, as follows:
“The Tribunal’s decision
6. The Tribunal found the applicant to be a credible witness, who did not attempt to embellish his evidence: [20]. The applicant’s claimed experiences of proximity to violence were consistent with country information. The Tribunal accepted that people close to him had been the victims of sectarian attacks, including an uncle. It accepted that the applicant faced a real chance of serious harm in his home area of Hangu: [20]-[47].
7. The Tribunal went on to consider whether the risk of persecution related to all areas of the country. The Tribunal observed that the risk of violence varied depending on geographical area. Country information indicated that there were identifiable parts of the country where there would not be a real chance of persecution, including Islamabad and Lahore. The Tribunal concluded that the risk of persecution did not relate to all parts of the country. The Tribunal was therefore not satisfied that the applicant had a well-founded fear of persecution: [51]-[71].
8. In considering whether it would be reasonable, in the sense of practicable, for the applicant to relocate the Tribunal had regard to its earlier findings and country information. At [78], it found that “based on the country information set out earlier” there was not a real risk of any kind of harm to the applicant in Lahore or Islamabad.
9. The information “set out earlier” included country information responding to the applicant’s submission that he could not relocate to Punjab or Lahore, as “there had been harassment and discrimination against Pashtuns by Punjabis, including by police”: [67]. In this regard, the Tribunal considered country information indicating that although there had been some claims of harassment in the Pashtun community, Pashtuns did not face a higher risk of violence than other groups based on their ethnicity: [67]. The Tribunal also considered information indicating that, due to extensive internal migration, the applicant “would not be particularly noticeable were he to move to a different area”: [68]. Based on this and other country information, the Tribunal concluded, at [69], that the applicant would “not face a real chance of harm” in such parts of Pakistan from extremist or anti-Shia groups, including “for reasons of ethnicity”: [69].
10. The Tribunal set out the test for reasonableness of relocation, by reference to authority, at [79]-[80] of its decision. At [81], it observed that it had been unable to locate evidence suggesting that he would “suffer harm” in other parts of Pakistan, including “because he is from the Bangash tribe”. At [83], it observed that country information indicated that, because of Pakistan’s size and diversity, relocation offered a degree of anonymity and the opportunity to seek refuge from “discrimination or violence”.
11. The Tribunal considered the particular circumstances of the applicant, including his educational and employment background, travel and family situation. The Tribunal observed that there were Pashtun Shia communities both in Islamabad and Lahore. The Tribunal considered the applicant would be able to draw on social and cultural support from other Pashtun Shias if he relocated: [84]-[85].
12. Based on the available country information and the applicant’s circumstances, the Tribunal concluded that it would be reasonable in the sense of practicable for the applicant to relocate. Accordingly, the Tribunal affirmed the Delegate’s decision: [86]-[91].”
Counsel for the applicant referred the Court to ELX17 v Minister Immigration and Border Protection [2018] FCA 1372 (“ELX17”) at [19] where Perry J referred to the need to consider the practical realities for, or impact on, the visa applicant of relocation from his residence to an area in the receiving country (in this case, Pakistan) where the applicant would not face a risk of significant harm.
Justice Perry stated at [21] of ELX17 that the scope of the enquiry to be undertaken into the practical realities of relocation is to be determined by reference to the issues raised by an applicant with respect to the question of relocation and on the material before it.
Justice Perry referred to MZACX v Minister for Immigration and Border Protection [2016] FCA 1212 (“MZACX”) per Kenny J which was also relied upon by the applicant. In particular, per Kenny J at [34] as follows:
“34. The nature of the inquiry as to the reasonableness of relocation depends on the particular objections raised by the visa applicant to relocation: SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; 174 FCR 415 at [124], citing Randhawa 52 FCR 437 at 442-443. These objections set the parameters for the Tribunal’s inquiry: MZYXP v Minister for Immigration and Border Protection [2013] FCA 1352 at [61]. The Tribunal’s task is to assess the reasonableness of relocation as regards the applicant by reference to the issues raised by him and on the other material before the Tribunal: AZAEH v Minister for Immigration and Border Protection [2015] FCA 414 at [21]; and NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 at [58], [60]-[61], [68].”
The applicant contends that impediments to his relocation to Islamabad or Lahore by reason of his Pashtun ethnicity squarely arose on the material before the Tribunal. The applicant submitted that discrimination against Pashtuns in Islamabad and Lahore was an impediment to relocation to those cities and was a claim squarely raised by the applicant on the materials before the Tribunal.
The applicant submitted that the claim in respect of Lahore was not considered. The applicant made similar submission in relation to Islamabad.
The applicant contended that the Tribunal failed to consider whether discrimination against Pashtuns was a reason why relocation would not be reasonable.
In his application for a protection visa, the applicant stated as follows:
“I am unable to relocate anywhere in Pakistan. There is a real chance/significant risk of harm for someone of my profile throughout Pakistan. It would be unreasonable for me to relocate to another part of Pakistan. I have a wife and child and that makes relocation unreasonable. I do not have any family or friends who live outside of Hangu who could support relocation. It would be unreasonable for me to live in Islamabad because I would not be able to subsist, especially with a wife and child to look after. My employment history is as an accountant and an accountant makes about $20,000 to $25,000 PKR per month in Islamabad/Rawalpindi. However, the cost of a two bedroom apartment in the Shia areas of Islamabad/Rawalpindi costs about $25,000 PKR per month. That is why I could not afford to subsist in Islamabad/Rawalpindi, especially with a wife and child. Islamabad is also not safe for Shias. For example, there have been targeted attacks against Shias and Shia Mosques/Imambargahs and processions have been attacked. I am unable to relocate to Lahore and/or Punjab. First, that is because I am Pashtun. There is harassment and discrimination against Pashtuns by Punjabis, including the police. There are areas where they do not allow rent to Pashtuns. The second reason is because I am Shia and there are threats and harm against Shias. I am unable to relocate to Karachi. That is because I am Shia and Pashtun and because there is a high level of criminality. There have been many attacks against Shias in Karachi this year.”
In a submission dated 14 September 2017, the applicant’s solicitors, inter alia, referred to country information relating to a “Crackdown against ethnic Pashtuns” beginning in the Punjab province in Rawalpindi just outside Islamabad.
The Delegate in its decision noted that the applicant claimed to be unable to relocate to Lahore and or the Punjab because of harassment and discrimination against Pashtuns in the Punjab, including by police. The Delegate also noted the applicant’s claim that there are areas in the Punjab where accommodation will not be rented to Pashtuns. There are also threats of harm against Shias.
The Delegate referred to Department of Foreign Affairs and Trade (“DFAT”) information that stated as follows:
“Some sources have told DFAT that Bangash Shias may be physically distinguishable from other Pashtuns…The same sources indicate that Bangash and Turi accents are easy to distinguish from other Pashtun groups.”
It is common ground that the applicant is a member of the Bangash tribe of Pashtuns.
The Tribunal noted that the applicant feared generalised violence in Pakistan. The Tribunal also noted the applicant’s claim that he could not relocate to Lahore or the Punjab because there is a harassment and discrimination against Pashtuns by Punjabis, including from the police. The Tribunal noted that the applicant claimed that there were areas where Pashtuns cannot rent property and that there are threats of harm against Shias.
The Tribunal referred to the applicant’s submission that he could not relocate to Punjab or Lahore as there had been harassment and discrimination against Pashtuns by Punjabis, including the police.
However, the Tribunal noted DFAT information before it that stated essentially that Pashtuns do not face a higher risk of violence than other groups based on their ethnicity and that Pashtuns community leaders in Lahore had told DFAT that Lahore in particular is a safer place for Pashtuns that other parts of the country.
The Tribunal then found as follows:
“69. In summary, based on the independent country information and the applicant’s individual circumstances, the Tribunal is satisfied that that the applicant does not face a real chance of harm from extremist or anti-Shia groups in the reasonably foreseeable future in all parts of the country, for reasons of ethnicity or religion or for being a Shia professional.”
In considering the complementary protection criterion and whether it would be reasonable for the applicant to relocate, the Tribunal was satisfied based on the country information before it that the applicant was not at a real risk of harm in Lahore and Islamabad.
The Tribunal noted that relocation must be reasonable in the sense of practicable and must depend on the particular circumstances of the applicant and the impact upon the applicant of relocation within his country. The Tribunal then considered whether it would be reasonable to expect the applicant to relocate to another area where there is not a real risk of significant harm, including risks of generalised violence. The Tribunal specifically noted that the harm included that initially feared or another type of significant harm. The Tribunal stated that whether relocation is reasonable, in the sense of practicable, depended on the particular circumstances of the applicant and the impact on the applicant of relocating within his country. In stating those propositions the Tribunal had regard to the High Court of Australia in SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 at [24] where Gummow, Hayne and Crennan JJ stated as follows:
“24. However, that does not mean that, without more, the formulation by the Minister is sufficient and satisfactory. What is "reasonable", in the sense of "practicable", must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality.”
The Tribunal then had regard to country information which disclosed improvements in the security situation across Pakistan. In particular, the Tribunal referred to evidence suggesting that in Islamabad while there are incidents of violence, there is not a real risk of significant harm for reason of being Shia or from generalised violence. The Tribunal then stated that there was no evidence before it to suggest that the applicant would suffer harm in other parts of Pakistan because he is from the Bangash tribe of Pashtuns.
The Tribunal referred to DFAT information before it that under the Constitution of Pakistan freedom of movement is guaranteed and that there are no legal impediments to relocation. The Tribunal referred to the DFAT information that ethnic and religious minorities, including Shias, can relocate to areas of relative safety, including in many large urban centres. The Tribunal stated that “Because of Pakistan’s size and diversity, internal relocation offers a degree of anonymity and the opportunity for victims to seek refuge from discrimination or violence.”
The Tribunal then considered the applicant’s concerns that he may not be able to provide for his family on an accountant’s wage. The Tribunal noted that the applicant referred to a DFAT report which stated that, in practice, internal relocation could be limited by a lack of financial resources compounded by higher costs of living.
Further, the Tribunal also noted that the applicant has a BSc (Hons) in Applied Accounting from Oxford Brookes University and has also had specialist training from the Association of Certified Chartered Accountants in Scotland. The Tribunal noted that the applicant had worked as an auditor and accountant, as well as a partner in a car import/export business. The Tribunal also noted the applicant’s “valuable work experience” in the United Arab Emirates (“UAE”) between 2011 to 2017, which the Tribunal found demonstrated an ability to live in new environments. The Tribunal found the fact he had spent 6 years in the UAE and has travelled to Australia indicated that the applicant has “The kind of resilience, resourcefulness and organisation skills necessary for relocating to a different region and adapting to new situations”.
The Tribunal noted that the applicant had spent significant amounts of time in Islamabad and that while accommodation may be more expensive, DFAT reported that this is offset by higher wages paid in larger cities than villages. The Tribunal noted that the applicant has had resources to travel extensively and did not accept that the applicant would be economically destitute or unable to access services or support his family. The Tribunal also noted that the applicant does have a family in Pakistan who may be able to assist financially given that the applicant’s wife and child are currently living with his family.
The Tribunal then considered Lahore and Islamabad in particular, as follows:
“85. Further, there are many Shia regions in major cities, including Islamabad and Lahore, as well as Pashtun Shia communities. In Lahore, there are Shia communities in Islampura and in old areas of the Walled City. In Islamabad there are Shia communities in Turi, Kohi-Noor and Golra Sharif and in small towns close to Islamabad. As discussed earlier in this decision, DFAT has assessed Shias as at low risk of sectarian and generalised violence, and country sources indicate that the chance of significant harm is remote only and would not amount to a real risk. Pakistan is ethnically and linguistically diverse. Punjabis form the largest ethnic group (45%), followed by Pashtuns (15%), Sindhis (14%) and Seraikis (8%). DFAT has stated that in most areas Shias and Sunnis are well-integrated in communities. Although not ideal that he does not have families in other cities, he does have family support in Pakistan, and also has lived in Islamabad for significant periods in the past so he would be familiar with it, and would also be able to draw on social and cultural support from other Pashtun Shias. DFAT has observed that Shias relocate with relative ease and frequency because of family and community networks throughout Pakistan.”
(Footnotes omitted)
Ultimately, the Tribunal concluded that it would be reasonable, in the sense of practicable, for the applicant to relocate to a different part of Pakistan where there would not be a real risk of significant harm.
The applicant contends that the Tribunal failed to consider the impediment of his Pashtun ethnicity to his relocation to Islamabad and Lahore. The applicant submitted that where an impediment to relocation is raised by an applicant, it is an error for the Tribunal to consider only harm at the level of significant harm. The applicant submitted that discrimination against Pashtuns was an impediment to his relocation to both Islamabad and Lahore and that such a claim squarely arose on the applicant’s material.
The first respondent conceded that the applicant did raise an impediment to relocation to Lahore because he is a Pashtun.
In relation to Islamabad the applicant’s impediment was that he would be unable to subsist. The applicant referred to his employment history as an accountant and the cost in Islamabad/Rawalpindi of housing costs.
The applicant submitted that the Tribunal had failed to consider whether discrimination against Pashtuns was a reason why relocation would not be reasonable and had confined its consideration of discrimination against Pashtuns to whether there was a risk of persecution, namely, serious harm. The applicant submitted that the Tribunal needed to decide whether the claims about discrimination against Pashtuns were true and, if so, whether that discrimination affected the reasonableness of relocation. The applicant submitted that the Tribunal’s consideration of discrimination referred to Shias in Pakistan and did not consider the particular ethnicity of the applicant.
However, I do not accept the applicant’s submissions. A fair reading of the Tribunal’s reasons does not support the contention that in considering impediments to the applicant’s relocation, the Tribunal confined itself to a risk of significant harm. The Tribunal’s reasons were not confined to its finding that there was not a real risk of significant harm for reasons of being Shia or from generalised violence.
As stated above, the Tribunal found there was no evidence before it to suggest that the applicant would suffer harm in other parts of Pakistan because he is from the Pashtun Bangash tribe. The Tribunal had particular regard to the Constitution of Pakistan that guarantees freedom of movement and states that there are no legal impediments to relocation. The Tribunal also found, based on country information before it, that Pakistan’s size and diversity offered the applicant a degree of anonymity and an opportunity for victims to seek refuge from discrimination or violence.
In particular, as referred to above, the Tribunal stated that “DFAT states that there are options for members of most ethnic and religious minorities, including Shias to relocate to areas of relative safety, and many urban centres are home to mixed ethnic and religious communities.”
Fairly read, the Tribunal’s findings do not suggest a failure to consider the impediment of discrimination to Pashtuns. I do not accept the applicant’s submissions that the Tribunal considered discrimination only in terms of serious harm. Essentially, the Tribunal’s finding that there was no evidence before it that the applicant would suffer harm in other parts of Pakistan because of his ethnicity, was not a finding expressed in terms of “significant harm”. I do not accept the applicant’s submission that the reference by the Tribunal to the opportunity for victims to seek refuge from discrimination or violence because of Pakistan’s size or diversity and therefore anonymity, was not intended to include discrimination against Pashtuns.
The Tribunal’s reasons address the applicant’s claim to fear discrimination by reason of his Pashtun ethnicity and because he is a Shia.
Even if the Tribunal had only considered discrimination in terms of “significant harm”, the applicant only made such a claim in respect of Lahore.
In relation to Islamabad the applicant’s impediments were confined, as stated above, to employment and housing issues. The Tribunal considered those matters in detail and, for the reasons referred to above, did not find them to be impediments to relocation. The Tribunal also had regard to the fact that the applicant had lived in Islamabad for significant periods in the past and found he would be familiar with it and able to draw on social and cultural support from other Pashtun Shias.
In relation to Shias, the Tribunal referred to and relied on DFAT information that Shias relocate with relative ease and frequency because of family and community networks throughout Pakistan.
In the circumstances, the Tribunal considered in detail the impediments raised by the applicant in relation to relocation to Islamabad. The Tribunal’s findings and conclusions in respect of those issues were open to it on the evidence and material before it and for the reason it gave, they were probative findings based on logical grounds and were not without an intelligible justification (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ).
Accordingly, there is no error in the Tribunal’s finding that it was reasonable in the sense of practicable having regard to the applicant’s particular circumstances for the applicant to relocate to Islamabad.
In relation to Lahore, as stated above, I do not accept that the Tribunal was confining its consideration of the applicant’s impediment of discrimination against Pashtun ethnicity as being considered only in the context of whether such discrimination involved “significant harm” or “serious harm”. In my view, the appropriate inference to be drawn from the Tribunal’s reasons is that the applicant’s claims regarding discrimination against Pashtuns in considering relocation was considered in the context of s.36(2B)(a) of the Migration Act 1958 (Cth) which it states as follows:
“(2B) However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or”
In the circumstances, the particular objections raised by the applicant to relocation in Islamabad and Lahore were considered by the Tribunal in its assessment of the reasonableness of relocation of the applicant and on the other material before the Tribunal (see MZACX at [34]; ELX17 at [21]).
The Tribunal’s reasons are comprehensive in its consideration of the relevant issues. In the absence of a specific finding in relation to discrimination against the applicant in Lahore by reason of his Pashtun ethnicity, such a finding is subsumed in the Tribunal’s findings of greater generality as stated in ApplicantWAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALR 630 at [47] per French, Sackville and Hely JJ as follows:
“47.The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”
Accordingly, the ground of the Amended Application is not made out.
The Tribunal’s decision is not otherwise affected by jurisdictional error and the proceeding before this Court should be dismissed with costs.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Date: 5 December 2018
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