MZAAZ v Minister for Immigration
[2017] FCCA 2636
•31 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZAAZ v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2636 |
| Catchwords: MIGRATION – Protection visa application – judicial review of Administrative Appeals Tribunal – relocation within Pakistan – no matter of principle. |
| Legislation: Migration Act 1958 (Cth) |
| Cases cited: MZZZA v Minister for Immigration and Border Protection [2015] FCA 594 NAIZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 37 |
| Applicant: | MZAAZ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 350 of 2014 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 11 April 2017 |
| Date of Last Submission: | 30 May 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 31 October 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Wood |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the First Respondent: | Mr Knowles |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $7,206.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 350 of 2014
| MZAAZ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant applies for judicial review of a decision of the Refugee Review Tribunal, as the Administrative Appeals Tribunal was then known.
The applicant is a citizen of Pakistan who entered Australia on 5 August 2012. In November 2012, the applicant applied for a protection visa based upon claims that he would face a real chance of serious or significant harm at the hands of the Taliban as a result of: his Shia Muslim religion, his Pashtun ethnicity, his membership of the Turi Tribe, being a Shia from Kurram, and also as a failed asylum seeker or returnee from the West. In particular, the applicant relied upon the fact that he was from Parachinar in the Kurram Agency in the federally administered tribal areas (a small province of Pakistan in the northwest of the country, lying between Afghanistan and the province of Khyber Pakhtunkhwa). The Parachinar area is in the far west of the province.
The applicant also specifically relied upon an event in 2011 where he said he and others were travelling in a convoy to Peshawar (a city to the east of Parachinar) just inside the province of Khyber, Pakhtunkhwa, when they were abducted by the Taliban and mistreated before he escaped. The applicant maintained that he could not reasonably and safety relocate within Pakistan as a result of his Pashtun Shia Muslim religion and his ethnicity as a member of the Turi Tribe.
On 3 September 2013, a delegate of the Minister declined to grant the applicant a protection visa. The applicant applied to the Tribunal for a review of the delegate’s decision in September of 2013. The Tribunal conducted a review in December 2013 at which the applicant, who was represented, gave evidence with the assistance of an interpreter. The applicant’s representative also provided written submissions and other documents to the Tribunal. The Tribunal affirmed the decision of the delegate in January 2014.
In October 2016, an amended application for judicial review was filed, and a proposed further amended application was filed in November 2016.
The Tribunal’s Findings
The Tribunal accepted that the applicant was a Shia Muslim and a member of the Turi Tribe from Parachinar in the Kurram Agency in Pakistan: see [52]. However, the Tribunal found the applicant’s evidence as to the kidnapping inconsistent and vague, expressing concerns about the applicant’s credibility and ultimately finding that neither the applicant nor his family had suffered any direct experience of harm or threatened harm from the Taliban or other insurgency groups in the Kurram Agency: see [45].
Nonetheless, the Tribunal did accept that, as a Shia Muslim and member of the Turi Tribe, he would face a real chance of serious or significant harm at the hands of the Taliban or other extremists if he were to return to the Khyber Pakhtunkhwa or federally administered tribal areas or Balochistan provinces of Pakistan. The Tribunal did not accept that he faced a real chance of serious harm due to his departure from Pakistan, seeking asylum or having been in a Western country: see [46] and following. The Tribunal concluded that outside of these provinces, the applicant would not face a real risk of significant harm as a result of his religion, Turi ethnicity or having come from Kurram Agency.
In this respect the Tribunal’s findings at [59]-[61] make clear the meaning it has given to ‘home region in the context of this case.
59. The Tribunal finds that there is a real chance that the applicant will be seriously harmed by Sunni extremist organisations, such as the Haqqani Network or Tehrik-e-Taleban, who are seeking to harm Shia individuals from the Kurram Agency, due to the extremist organisation’s interest in destabilising the FATA region generally, and interest in establishing a base of operations in the Kurram Agency and the passes into Afghanistan. The Tribunal finds that there is a well-founded fear of persecution for the applicant should he return to Kurram Agency, FATA, or the nearby areas of Hangu, Peshawar, or Khyber Pakhtunkhwa province.
60. The Tribunal finds that there is a real chance that the applicant would face serious harm now or in the reasonably foreseeable future if he was to return to FATA or Khyber Pakhtunkhwa, or Baluchistan for the Convention reasons of religion, ethnicity and membership of a particular social group as a Shia Muslim from Parachinar/FATA, and as a Turi tribe member.
61. Having determined that the applicant does have genuine fears return to his home region, the Tribunal is required to consider whether the applicant could reasonably relocate to a separate part of Pakistan. 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.
The Tribunal concluded that the applicant could relocate to locations within Pakistan to avoid the real chance of serious or significant harm and that it would be reasonable in the sense of being practicable for the applicant to relocate having regard to his marital status, not having children, his education, his ability to speak a number of languages (albeit with an accent), previous travel, and prior work experience.
The grounds relied upon by the applicant are expressed as follows:
Ground 1A
Ground 1A: The Tribunal erred in concluding that the applicant could reasonably relocate to another place in Pakistan where he would not face a risk of serious or significant harm, by misdirecting itself at law with respect to the internal relocation principle or otherwise constructively failing to exercise its jurisdiction.
Particulars
(a) The Tribunal found that there was a real chance that the applicant would face serious harm now or in the reasonably foreseeable future if he was to return to the Federally Administered Tribal Areas (FATA), Khyber Pakhtunkhwa or Baluchistan for the Convention reasons of religion, ethnicity, membership of the particular social group Shia Muslims from Parachiner/FATA, and as a Turi tribe member.
(b) In considering the risks faced by the applicant across “Pakistan as a whole”, the Tribunal accepted that “there are targeted attacks on locations where Shia congregate, particularly during significant Shia religious festivals”, and that “[t]here are also specific attacks on Shia individuals ... across Pakistan.”
(c) The Tribunal found that the country information showed a “mixed assessment” in relation to the level of risk faced by “Parachinar Shia Muslims” across Pakistan. “It is clear that there are areas of Pakistan where the levels of risk are very high, for example Quetta, whereas the information for other areas is less clear.”
(d) The Tribunal considered that generally it was not necessary to identify a specific place in which an applicant can relocate.
(e) Ultimately, the Tribunal was not satisfied that the applicant would face harm as a Shia “outside of his home location.” The Tribunal considered that the likelihood of the applicant being harmed as a Shia outside of his home area was “an assumption and mere speculation on behalf of the applicant”.
(f) The Tribunal erred because it did not form a positive state of satisfaction that it would be reasonable for the applicant to relocate to another region in Pakistan where there was no appreciable risk of harm. It was insufficient to invoke the internal relocation principle for the Tribunal simply not to be satisfied that the applicant did not face an appreciable risk of harm outside of his home area.
(g) Further or alternatively, the Tribunal erred because, by implication, it required the applicant to live discreetly outside of his home area by avoiding “locations where Shia congregate, particularly during significant Shia festivals”, and it failed to consider whether the applicant would make a voluntary choice to avoid such locations influenced by the fear of harm
(h) Further or alternatively, in the circumstances of this case, and given the Tribunal acknowledged that it could not clearly distinguish between areas of high risk and areas of lesser risk for Shias, the Tribunal was required to specify a particular place to which the applicant could reasonably relocate.
In considering the relocation, the Tribunal correctly assessed that it needed to identify if there was a separate part of Pakistan in which the applicant could relocate where there was not an appreciable risk of the occurrence of persecution or serious harm: see [62]. The Tribunal went on to consider this, saying at [64]:
64. The Tribunal has considered country information in relation to the treatment of Turi Tribe, Shia Muslims and Parachinar Shia Muslims in Pakistan as a whole. The Tribunal notes that the information shows that there are targeted attacks on locations where Shio congregate, particularly during significant Shia religious festivals, the attacks on the Ashura festival in November an example of this. There are also specific attacks on Shia individuals, including professionals, by extremist organisations across Pakistan. There is less country information regarding specific targeting of Turi tribe members, either for their ethnicity or their imputed anti-insurgent political opinions. The Tribunal considers that the country information provided by the applicant and considered by the Tribunal shows a mixed assessment in relation to the level of risk that Parachinar Shia Muslims. It is clear that there are areas of Pakistan where the levels of risk are very high, for example Quetta, whereas the information from other areas is less clear. While there have been incidents of violence against Shia, the Tribunal does not accept all Shia in Pakistan are at risk of harm. According to the Pakistan Institute for Peace Studies over 85 per cent of the recorded incidents (which included terrorist attacks and sectarian clashes) occurred in Kurram Agency in the FATA, Karachi, Quetta and Gilgit. [FN: >
The applicant argues that such a finding is insufficient to ground a finding that it is reasonable for the applicant to relocate as the decision-maker must form a positive state of satisfaction that it would be reasonable to relocate to another particular part of the country, relying upon the comments of Mortimer J in MZZZA v Minister for Immigration and Border Protection [2015] FCA 594 at [29], where her Honour said:
29. There was no disagreement between the parties that the approach set out in SZATV was the one the Tribunal was required to adopt, and it was common ground that was the approach the Tribunal set out in its reasons. It was also common ground that the approach in SZATV required the decision-maker to form a positive state of satisfaction that it was reasonable for a person to relocate to another part of her or his country of nationality.
As was argued by the applicant, there was a specific area that was identified by the Tribunal where the applicant would not face a significant risk of harm. The First Respondent answers this in argument by, firstly, identifying comments of the Full Court in NAIZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 37 at [57], where the Full Court said:
57. It is therefore submitted by the appellant that the Court should more readily infer the Tribunal asked itself the wrong test as a result of the following factors. The first is that the Tribunal did not consider whether it was positively satisfied that it was reasonable for the appellant to relocate. It is said that, rather, the Tribunal set itself a lower bar, finding only that it was not satisfied it was unreasonable for the appellant to relocate. Second, the Tribunal failed to address all of the reasons advanced by the appellant as to why the Tribunal should conclude it was not reasonable to expect her to relocate. In particular, her age, lack of education and mental scars were not referred to, although they should have been addressed even on the Randhawa test. Third, the Tribunal took into account an irrelevant consideration in asking not whether it was reasonable to expect the appellant to relocate but whether it was reasonable to expect her daughter to effectively fund that relocation: see The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd[1953] HCA 22; (1953) 88 CLR 100 at 119-120.
The Minister also invites a close reading of the Tribunal’s reasons on this point at [80]-[83], [87] and [93], which provide as follows:
80. The Tribunal has also considered the issue of generalised violence affecting the applicant in Pakistan. The Tribunal accepts there are violent incidents across Pakistan, with harm coming to people in acts of violence perpetrated by insurgent groups. In considering this general violence, the Tribunal again reflects on the real chance of the applicant being involved in such an incidence. That the applicant would be in a certain place at a certain time when an act of violence occurs is something that the Tribunal considers as remote and speculative, and not something that would constitute a real chance of occurring. The Tribunal considers that the applicant does not face a real chance of serious harm arising out of the generalised violence in Pakistan, now or in the reasonably foreseeable future.
81. The Tribunal finds that the applicant does not face a real chance of serious harm for the reason of his Shia religion outside his home region. The Tribunal finds that the applicant does not have a well-founded fear of persecuting for this reason now or in the reasonably foreseeable future.
82. The Tribunal finds that the applicant does not face a real chance of serious harm for the reason of his Turi ethnicity outside his home region. The Tribunal finds that the applicant does not have a well-founded fear of persecution for this reason now or in the reasonably foreseeable future.
83. The Tribunal finds that the applicant does not face a real chance of serious harm for the reason of his membership of a particular social group outside of his home region. The Tribunal finds that the applicant does not have a well-founded fear of persecution for this reason now or in the reasonably foreseeable future.
…
87. The Tribunal considers that it would be reasonable in the sense of practicable for the applicant to return to areas of Pakistan where he could live without a real chance of serious harm. The Tribunal considers that the applicant could establish himself as a young man with no dependants, with a family member already residing and studying outside of the applicant’s home region. The Tribunal considers that the applicant may have some initial challenges in establishing himself in other areas of Pakistan, given the limited family connections to other areas of Pakistan, but that he has the abilities to allow himself to gain employment and become financially capable of living and supporting himself in Pakistan. The Tribunal considers that having developed his situation in other locations of Pakistan family members will be in a position to visit with him in the location that he chooses. The applicant has shown an aptitude for travelling away from his family in the past, in his trip to Iran and to Australian, and his concerns for being away from his family is somewhat limited by his actual activity. The Tribunal considers he can reasonably relocate without concern for the sectarian and generalised violence that he claims he will face, as considered in his claims above, and the Tribunal considers that he could reasonably establish himself in a location in Pakistan.
…
93. Having regard to the definition of significant harm in s.36(2A) of the Act as set out under the heading ‘relevant law’ above, and the findings of the Tribunal as set out above, the Tribunal does not accept hat what the applicant might experience upon return to particular locations within Pakistan will involve a real risk of being arbitrarily deprived of his life; having the death penalty carried out on him; or being subjected to torture; or to cruel or inhumane treatment or punishment; or to degrading treatment or punishment. The Tribunal has determined that the applicant will have to relocate from his home region, but considered that there are locations within Pakistan where he will be able to relocate to where he will not face a real risk of significant harm. The Tribunal has found that it would be reasonable for the applicant to relocation within Pakistan for the purposes of the Convention considerations, and consider that the same applies in considering the applicant’s complementary protection claims.
The Minister argues that a close reading of the paragraphs demonstrates that the reference to “home region” was, on a fair reading of the Tribunal’s decision as a whole, a reference to the three provinces referred to above, not simply a reference to the village area in which he had lived. I am persuaded that a fair reading of the decision indicates that the reference to a home region was that of the provinces referred to by the Tribunal, albeit that they cover a large part of Pakistan.
Whilst the applicant’s counsel argued that it was unclear whether an area such as Quetta was an area that the Tribunal intended that the applicant could relocate to, given the findings of incidents of violence in Quetta (see [55]), this does not appear to be an inconsistency if the phrase “home region” is taken to include the three provinces as Quetta is located in Baluchistan.
The Tribunal appear to have used the phrase “home region” to cover a much wider area that what may be considered a “home region” in common usage of that phrase in Australia. However, once one reads the decision and sees that “home region” is being to cover the three provinces, its meaning for the purpose of this decision is clear and makes sense in the Tribunal’s reasoning.
Ultimately, I am not persuaded that the applicant has made out this ground, once one adopts a fair reading of the Tribunal’s reasons relating to a home region. To the extent that the Tribunal did not identify a specific city, in the context of this case it does not appear to me that that was necessary. The Tribunal has made findings that the applicant would be able to relocate within Pakistan, which would leave at least the two provinces of Punjab and Sindh which include a number of major cities such as Karachi and Lahore. It is open to a Tribunal to conclude a specific region is suitable for relocation without necessarily specifying every particular city or local authority district therein. In the context of this case, I am persuaded that the Tribunal was able to make the findings in the form that it did.
The second argument that the applicant raises is that the Tribunal accepted that there were targeted attacks upon Shias in locations where they congregate for festivals, carried out by extremist organisations within Pakistan. The relevant findings are set out in [80] above and [73]-[75] of the Tribunal’s decision, which provide as follows:
73. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation. In MIEA v Guo, the Court said:
Conjecture or surmise has no part to play in determining whether a fear is well-founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation [FN: MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293].
74. Shia Muslins continue to practice their religion and hold their religious festivals, such as Ashura and Muharram. The Tribunal does not consider that the applicant will be precluded from practising his religion in Pakistan outside of his home location and the locations listed above. The Tribunal considers that the applicant will be able to live as a Shia and practice his religion with the likelihood of being harmed being an assumption and mere speculation on behalf of the applicant, so as not to constitute a real chance or real risk of harm.
75. The Tribunal has found above that the applicant and his family have not had any personal experience of harm due to their background. The Tribunal does not consider that the applicant would be targeted for harm by any insurgent group because of his religion generally.
The relevant passage the applicant relies upon appears in [64] (above). The Tribunal went on to note at [66]-[69], saying:
66. Shia mosques and sites of worship (imambargahs) are located across Pakistan, including in most major cities and towns. There are also a number of famous religious sites that are attended by both sects. Many of these are Sufi shrines.
67. The Tribunal discussed with the applicant the attacks against Shia that occurred during the significant religious festival of Muharram in November 2013, including an attack on a mosque in Rawalpindi. The Tribunal notes that the State provided a significant security presence for the Shia religious festivals in a number of locations across Pakistan, and foiled a number of attempts to disrupt and harm the Shia community at that time. The Rawalpindi incident highlighted how the remaining locations in Pakistan were relatively trouble free during this time.
68. In November 2012, ‘thousands’ of Shias participated in the Muharram procession in Islamabad, marking the beginning of the Islamic new-year. According to a November 2012 report in the Pakistan newspaper Dawn, security forces were present to provide protection:
Besides, a unit of bomb disposal squad, in their heavily protective gears, were moving ahead of the procession to counter terrorist moves by defusing any device it found.
The authorities left no stone unturned in maintaining security arrangements, and apart from the regular police force, contingents of Rangers and Frontier Constabulary were posted along the procession rout and on roof-tops and army helicopter maintained air surveillance. Personnel of special branch and the Intelligence Bureau not only moved in the procession by were also sustained at sensitive spots near the procession route. Besides, a large number of volunteers along with regular police frisked the participants entering the procession [FN: Ali, K 2012, ‘Thousands attend Muharram procession in Islamabad, Dawn, 25 November see also ’Chehlum observed peacefully in capital’ 2013, Plus News Pakistan, 3 January].
69. Whilst the report indicate that the State has attempted to provide protection to Shias in Islamabad, the report also suggests that targeted attacks were thought to be possible, and notes that the procession occurred “despite heightened threats and warnings of terror attacks this year” [FN: Ali, K 2012, ‘Thousands attend Muharram procession in Islamabad, Dawn, 25 November >
The Tribunal then went on to consider the relevant test from Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 397 and Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559; (1997) 144 ALR 567; (1997) 71 ALJR 743 in the High Court, before concluding at [74] that the applicant would not be precluded from practising his religion in Pakistan outside of his home region or location and could continue to practise his religion in other locations. This is not a case where, as the applicant argues, the Tribunal have suggested that he either not continue to practise his religion or do so discreetly, in the sense discussed by the High Court in S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; 216 CLR 473; 203 ALR 112; 78 ALJR 180.
Ultimately, it appears to me that the substance of the Tribunal’s findings was that there were large areas within Pakistan where the applicant could reasonably relocate, and that the arguments raised under this ground flow from an overly close and technical reading of the reasons, contrary to the proper approach as identified in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, where the High Court warned against adopting an approach of utilising an overly fine appellate tooth comb saying at p.272:
“The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.”
Ground 1B
Ground 1B was framed as follows:
Ground 1B: The Tribunal made inconsistent findings of fact in relation to where in Pakistan the applicant faced a real chance of harm, including as relevant to the possible application of the internal relocation principle. The making of those inconsistent findings of fact themselves amounted to a jurisdictional error. Further or alternatively, the making of those inconsistent findings of fact illustrate a failure by the Tribunal to perform its task.
Particulars
(a) The Tribunal made numerous inconsistent findings of fact.
(b) By way of example, the Tribunal found in paragraph 60 that the applicant would face a real chance of persecution in FATA. Khyber Pakhtunkhwa and Baluchistan (each being or encompassing places outside of the Kurram Agency) "as a Turi tribe member". However, the Tribunal found in paragraph 78 that the applicant would not face a real chance of persecution outside of Kurram Agency as a Turi tribe member.
(c)By way of further example, the Tribunal found in paragraph 60 that the applicant would face a real chance of persecution in FATA, Khyber Pakhtunkhwa and Baluchistan (each being or encompassing places outside of the Kurram Agency) as a member of the particular social group "Shia Muslim from Parachinar/FATA". However, the Tribunal found in paragraph 79 that the applicant did not face a real chance of persecution outside of Kurram Agency as a member of the particular social group "Shia Muslim from Parachinar/Kurram".
(d)By way of further example, the Tribunal (implicitly) found in paragraph 67 that Rawalpindi was not safe. However, the Tribunal (implicitly) found in paragraph 86 that Rawalpindi was safe.
In support of ground 1B, the applicant says that the Tribunal made a number of inconsistent findings of fact. The first example given by the applicant is the findings at [60] and [78], which provide as follows:
60. The Tribunal finds that there is a real chance that the applicant would face serious harm now or in the reasonably foreseeable future of he was to return to FATA or Khyber Pakhtunkhwa, or Baluchistan for the Convention reasons of religion, ethnicity and membership of a particular social group as a Shia Muslim from Parachinar/FATA, and as a Turi tribe member.
…
78. Considering then the general situation, the country information that has been provided and as discussed does not demonstrate that Turi tribe members outside of Kurram Agency are being targeted for harm due to their ethnicity. The Tribunal does not consider that the applicant will be targeted for this reason outside of his home region. Again considering the guidance of the courts in assessing the real chance of being persecuted for this reason outside of his home region, the Tribunal again considers it to be mere speculation on behalf of the applicant and not a real chance or a real risk.
Similarly, the applicant refers to [79] where the Tribunal says:
79. The applicant has also made claims that he will be persecuted because of his membership of particular social groups, including social groups arising out of his being a Turi Shia, and a Shia from Kurram Agency. The applicant provided limited information as to how membership of these partiucalr social groups, which the Tribunal accept exist and the applicant would be a member of, would lead to persecution, beyond that as presented in the consideration of the claims of persecution for reasons of his religion and ethnicity. The Tribunal has considered the claims of being a member of particular social groups of Shias from the Kurram Agency and that he is generally from the Parachinar region, in the context of relocating to a different area of Pakistan. As found above, Shias from Kurram and people from Parachinar are targeted for harm in their home region. However outside of that region, there is limited information that people from the Kurram/Parachinar region are targeted for harm. There is information that people with profile are targeted, for instance those have been involved in the leadership of the Shia community in Kurram/Parachinar, who may have been involved in the peace Jirgas. This is not the case of the applicant or his family, who have remained farmers in their village and not had any responsibilities, as stated by the applicant. The Tribunal does not accept that the applicant will be targeted for these reasons outside of his home region. The Tribunal does not consider that the applicant has a real chance of serious harm arising out of his membership of particular social groups of Shias from Parachinar/Kurram or just coming from Parachinar outside of his home region. The Tribunal finds that the applicant does not have a well-founded fear of persecution now or in the reasonable foreseeable future for these reasons.
As counsel for the Minister points out, once one reads the phrase “home region” as referring to the three provinces, no inconsistency arises. Even though, arguably, there may be some areas within the provinces that not all of the risks would relate to. It is apparent the Tribunal has approached the matter on the basis of the applicant being at risk in the immediate area from which he came, and for various reasons throughout the three provinces. Once read in this light, the inconsistency that the applicant alleges arises from the reasons is not apparent.
A final example of alleged inconsistency put by the applicant relates to [67], where the Tribunal said:
67. The Tribunal discussed with the applicant the attacks against Shia that occurred during the significant religious festival of Muharram in November 2013, including an attack on a mosque in Rawalpindi. The Tribunal notes that the State provided a significant security presence for the Shia religious festivals in a number of locations across Pakistan, and foiled a number of attempts to disrupt and harm the Shia community at that time. The Rawalpindi incident highlighted how the remaining locations in Pakistan were relatively trouble free during this time.
It does not appear that the reasons in this regard showed that the Tribunal formed the view that there was any difficulty in Rawalpindi rather that it was an isolated incident. The Tribunal did note later, at [76] and [80], that the applicant’s brother had been able to study in Rawalpindi without difficulty, and concluded (in [80]) that the generalised violence in Pakistan did not demonstrate a real chance of serious harm.
In the circumstances, I am not persuaded that the applicant has established this ground for review.
Ground 1C
This ground again relates to the Tribunal’s use of the phrase “home region”. For the reasons already stated, with the view that the “home region” is used by the Tribunal to refer to the three provinces, even though this was a significantly larger region than the immediate surrounds of the applicant’s original village. This is not a case where the decision-maker has used the phrase to relate to a relatively small area nor where the relocation is considered possible to a location relatively close. The applicant would read the Tribunal’s reasons as indicating a variety of ever-broadening definitions of home region, as is set out in the written submissions filed 3 November 2016 at [35], where the applicant says:
35. Alternatively, the Tribunal (implicitly) made inconsistent findings of fact as to what was the applicant’s “home location”. Thus, on the applicant’s alternative argument, the Tribunal variously (and inconsistently) found that the applicant’s “home location” was: Parachinar ([52], [64], [76], [79], [86]-[87]); Kurram Agency ([42], [58], [79]); FATA; FATA and Khyber Pakhtunkhwa province ([59]); FATA, Khyber Pakhtunkhwa province and Baluchistan ([60). On this alternative limb of the argument, the Tribunal’s decision is also affected by jurisdictional error outlined in paragraph 28 to 30 above.
However, there is no real need to limit the definition of “home region” to a narrower area than the three provinces mentioned in [60], as all of the other references are to places within that broader region. Secondly, there are large areas of many cities within the other provinces of Pakistan in which the Tribunal clearly concluded that the applicant could reasonably relocate.
Ground 1D
The applicant frames ground 1D as follows:
Ground 1D: The Tribunal engaged in irrational or illogical reasoning by concluding that the fact of an attack on a Shia mosque in Rawalpindi in November 2013 "highlighted how the remaining locations in Pakistan were relatively trouble free during this time".
Particulars
(a) The Tribunal found that there had been "attacks against Shia that occurred during the significant religious festival of Muharram in November 2013, including an attack on a mosque in Rawalpindi".
(b)On this basis, the Tribunal found that "[t]he Rawalpindi incident highlighted how the remaining locations in Pakistan were relatively trouble free during this time ".
(c)The Tribunal's reasoning was irrational. The fact of an attack against a Shia mosque in Rawalpindi in November 2013 was incapable of supporting a conclusion that "the remaining locations in Pakistan were relatively trouble free at this time".
In substance, the applicant argues that the evidence of the attack on the mosque in Rawalpindi in [67] (quoted above) is not able to be utilised to reason that there was relative safety in the Rawalpindi area. In simple terms, the applicant says that evidence of an attack on a mosque in Rawalpindi cannot be evidence of safety or security in Rawalpindi. In this sense, the applicant argues that the reasoning is illogical or irrational in the sense discussed in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.
As counsel for the Minister argues, the example of the Rawalpindi attack was utilised by way of distinction from the rest of Pakistan, where the festival of Muharram was relatively trouble free during November 2013 and that significant security presences for the Shia festivals occurred. At [68], the Tribunal spoke of thousands of Shias participating in the festival in Islamabad in November 2012, and the extensive arrangements in place by the State to provide appropriate protection. The Tribunal did not take a simplistically positive view of the circumstances, noting that targeted attacks were thought to be possible, and that reports indicated that processions occurred despite threats and warnings of terror attacks (see [69]). Thereafter, the Tribunal reviewed the High Court authorities on the appropriate test before concluding, at [74]:
74. Shia Muslins continue to practice their religion and hold their religious festivals, such as Ashura and Muharram. The Tribunal does not consider that the applicant will be precluded from practising his religion in Pakistan outside of his home location and the locations listed above. The Tribunal considers that the applicant will be able to live as a Shia and practice his religion with the likelihood of being harmed being an assumption and mere speculation on behalf of the applicant, so as not to constitute a real chance or real risk of harm.
Whilst the applicant argues that the last sentence of this paragraph reverses the onus of proof, the first half of that sentence makes a positive finding, and the second half simply finds that the applicant’s argument is based upon assumption and speculation.
Ultimately, I am not persuaded of the applicant’s argument under this ground on a reasonable reading of the reasoning processes of the Tribunal as set out in the decision. In the circumstances, I am not persuaded that the applicant has established this ground.
Ground 3
In this matter, ground 2 has not been pursued in the amended application. Ground 3 was framed as follows:
Ground 3: The Tribunal failed to review all the personal circumstances of the applicant upon its assessment of relocation and/or made findings that were unreasonable and/or made findings without evidence.
Particulars
(a) The Tribunal failed to consider all of the relevant integers advanced by the applicant in relation to relocation and made critical findings that were either unreasonable and/or lacked any evidentiary foundation.
In ground 3, the applicant had claimed that the Tribunal had failed to take into account circumstances that militated against relocation being reasonable. The argument was developed on the basis that the Tribunal approached the case of relocation, describing the applicant as a “young man with no dependants” (see [87]). The applicant argues that he expressly asserted that he would have to support an extended family of some 22 people, all of whom would have to move with him. The Minister’s counsel says that no such claim was clearly put in the material before the Tribunal, and that, in any event, it was open to the Tribunal to conclude that the applicant was a young man with no dependants.
The evidence that the applicant was single and had no children was undisputed. It is difficult to conclude that there was a case clearly put to the Tribunal that the applicant’s large extended family would have to travel with him, indeed, for some years now, they have remained whilst he has been in Australia. I am not persuaded that the applicant has made out this ground with respect to this factor.
It was also argued in the outlines that there was no evidence that his family could travel to visit him, however it is clear that there was previous travel within Pakistan and that his brother had studied in Rawalpindi for over three years. On this basis, it must have been open to the Tribunal to conclude that his family could travel to visit him elsewhere in Pakistan. Of course, if they could not travel to visit him in Pakistan it seems they likewise would be unable to travel to see him in Australia.
In the circumstances, I am not persuaded that the applicant has made out a ground for judicial review.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Associate:
Date: 31 October 2017
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