MZACX v Minister for Immigration
[2015] FCCA 681
•24 April 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZACX v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 681 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming ethnic and religious persecution in Pakistan – Tribunal accepting his claims in relation to his home district but reasoning that the applicant could relocate to avoid the risk of harm – whether the Tribunal erred in its consideration of the relocation principle considered. |
| Legislation: Migration Act 1958 (Cth), s.91R |
| Applicant WAEE v Minister for Immigration (2003) 75 ALD 630 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 SZFCB v Minister for Immigration [2005] FCA 961 VQAB v Minister for Immigration [2004] FCAFC 104 |
| Applicant: | MZACX |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 675 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 24 March 2015 |
| Delivered at: | Sydney |
| Delivered on: | 24 April 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr D W Robertson |
| Solicitors for the Applicant: | Fragomen |
| Counsel for the Respondents: | Mr B D Kaplan |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application as amended on 26 September 2014 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
MLG 675 of 2014
| MZACX |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (Tribunal). The decision was made on 1 April 2014. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Pakistan. The following statement of background facts relating to the applicant’s protection claims and the decision of the Tribunal on them is derived from the submissions of the parties.
The applicant arrived on Christmas Island on 22 June 2012, having been taken there by Australian authorities, who had rescued him from the water after the boat he was a passenger on sank on its way from Indonesia to Australia.
On about 14 November 2012, the applicant submitted an application for a protection (Class XA) visa[1]. In his application, the applicant stated:
[1] Court Book (CB) 31-76
a)he is a Pakistani citizen;
b)his date of birth is 15 March 1990, making him then 22 years old;
c)he was born in Parachinar, Upper Kurram Agency, Pakistan;
d)he is a Shia Muslim of Pashtun ethnicity and a member of the Turi tribe;
e)he is able to speak, read and write Pashto, speaks Urdu and a “little” English;
f)he listed his occupation as a farmer;
g)from 1990 to 2007, he lived in the village of Malikhel, Parachinar, and from 2007 to March 2012 in the village of Ahmadzaie Sahra, Parachinar;
h)in 2008, his step-father was killed by the Taliban in Parachinar whilst travelling to purchase supplies for his business;
i)after his step-father’s death, he took over his step-father’s business but stopped working in the business after two months because he feared for his safety since the area where he travelled to purchase goods was occupied by the Taliban;
j)he left Pakistan on about 14 March 2012 and arrived in Australia on 22 June 2012 as an Irregular Maritime Arrival, having travelled to Australia by boat from Indonesia;
k)he claimed that he feared harm from the Taliban and other Sunni Muslims who target Turi Shias in Parachinar; and
l)he also claimed that he could not relocate to another area of Pakistan because there are attacks on Shia Muslims throughout Pakistan and the applicant would be recognised as a Shia Turi by his accent, identity documents and the way he practices his religion.
On 1 January 2013 the applicant’s migration agent submitted a written statement on the applicant’s behalf to a delegate of the Minister[2].
[2] CB 80-93
On 27 May 2013 the applicant attended a protection visa interview before the delegate.
On 8 July 2013 the delegate of the Minister refused the applicant’s application for a protection visa[3]. The delegate’s reasoning for refusing the application is summarised[4]:
I am satisfied that the applicant has a real chance of being persecuted in his home region [i.e. Parachinar].
However, I am not satisfied that the applicant has a real chance of being persecuted for a Refugees Convention reason if he were to relocate elsewhere in Pakistan (outside of Balochistan, FATA and Khyber Pakhtunkhwa areas).
[3] CB 105-127
[4] at CB 124
On 16 July 2013 the applicant applied to the Tribunal for review of the delegate’s decision[5].
[5] CB 128-134
On 28 January 2014 the applicant appeared before the Tribunal for a hearing[6]. The applicant also provided the Tribunal with written submissions in support of his application[7].
[6] CB 171-174
[7] CB 230-278 and 290-343
On 11 February 2014 the applicant submitted a post-hearing submission to the Tribunal[8].
[8] CB 176-182
On 2 April 2014 the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa[9].
[9] CB 184-201
The Tribunal’s reasons
The Tribunal accepted that the applicant is a Shia Muslim and a member of the Turi tribe, who had lived in Parachinar, Upper Kurram Agency in the Federally Administered Tribal Areas (FATA) of Pakistan[10].
[10] at [26]-[27]
The Tribunal noted independent country information which stated that the Turi tribe of Kurrum Agency is the only Pashtun tribe that is exclusively Shia[11].
[11] at [27]
The Tribunal accepted that there had been “sustained conflict” in Kurram Agency in recent years between the Turis, their Shia allies and some Bangash clans and Sunni extremists from Afghanistan and Pakistan, with the result that “thousands of people … were killed and wounded in the conflict” and “destruction of the [A]gency’s health, education and agricultural infrastructure and devastation of trade and development work”[12].
[12] [28]
The Tribunal accepted that in June 2008 the applicant’s step-father was killed in the FATA, near the Sunni Muslim area of Sadda, whilst travelling to Afghanistan to purchase supplies for his business[13].
[13] [30]
The Tribunal accepted that the applicant took over his step-father’s business after June 2008 and then ceased working in the business after two months because he was fearful for his safety[14].
[14] [31]
From its assessment of country information, the Tribunal accepted that the situation in the FATA was volatile, that there was a high degree of generalised violence against Shias, and that militant sectarian groups remained very active in the area and had attacked rival tribal and sectarian groups including Turi Shias at a high rate of frequency[15].
[15] [34]
Therefore, the Tribunal accepted that the applicant faces a real chance of serious harm on the basis of his Turi ethnicity and Shia religion if he returns to his home area in Parachinar[16].
[16] [35]
The Tribunal then considered whether the applicant’s fear of persecution is well-founded throughout Pakistan, for the purpose of determining whether there is a place in Pakistan where the applicant can reasonably be expected to relocate. The Tribunal stated the test for relocation as follows[17]:
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. Thus, a person will be excluded from refugee status if under all the circumstances it would be reasonable, in the sense of “practicable” to expect him or her to seek refuge in another part of the same country. What is “reasonable” in this sense must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country.
[17] [39]
The Tribunal then reformulated the relocation test in the following paragraph[18]:
The relevant questions for the Tribunal to address are whether there is a real chance that the applicant would face persecution for a Convention reason if he were to move to another area of Pakistan, and whether in his particular circumstances, it is reasonable for him to do so.
[18] [40]
In considering relocation, the Tribunal first considered the Country Information Report on Pakistan dated 29 November 2013 prepared by the Department of Foreign Affairs and Trade (DFAT)[19]. From that report, the Tribunal noted that “Pakistan is a diverse country and the security situation varies greatly from place to place”; that there are “a number of areas within the country which remain relatively free from the threat of militant, sectarian and politically motivated violence, particularly outside of FATA, Khyber Pakhtunkhwa and Balochistan”; that DFAT considered “the current situation in Islamabad and Lahore [to be] relatively free from politically motivated, terrorist and sectarian violence”; and that “urban areas are home to mixed ethnic and religious communities and offer great opportunities for employment, access to services and a greater degree of state protection than other areas”.
[19] [40]
At [41] and [42] of the reasons, the Tribunal seemed to dismiss the possibility of the applicant relocating to Lahore. The Tribunal then considered the possibility of the applicant relocating to Islamabad or Rawalpindi.
In considering the applicant’s relocation to Islamabad and Rawalpindi, the Tribunal made the following findings[20].
[20] [42]
First, the Tribunal found that “there are Shia communities found throughout Pakistan including in urban centres such as Islamabad and Rawalpindi”.
Secondly, the Tribunal considered the applicant’s submissions about Islamabad and Rawalpindi:
The Tribunal has taken into consideration the submissions made by the applicant’s adviser following the hearing that the country information supports that there exists an appreciable risk of harm throughout Pakistan, including the cities of Islamabad/Rawalpindi. The Tribunal notes the applicant adviser’s reference to a sectarian clash that occurred in Rawalpindi on 22 November 2013 during which a Shia religious procession, which reportedly resulted in the deaths of at least eight to ten people.
Thirdly, the Tribunal considered other country information:
However, the Tribunal has taken into consideration the DFAT Country Report cited above, as it is required to do, which describes Islamabad as being relatively free of sectarian violence, as well as UNHCR’s Eligibility Guidelines referred to by the applicant’s adviser, which identifies the areas where attacks against Shia processions and religious gatherings and sites predominantly occur and finds that there have been few attacks on the Shia community…in Rawalpindi.
Fourthly, the Tribunal found as follows:
While there have been incidents of violence against Shia and there will be further attacks against Shia targets in various parts of the country as there have been for a long time in Pakistan, dating from the mid-1980s according to the UNHCR Eligibility Guidelines, the Tribunal does not accept on the country information before it, including the information provided by the applicant’s adviser, that all Shia in Pakistan are at risk of harm.
Fifthly, the Tribunal noted:
[A]ccording to the Pakistan Institute for Peace Studies, over 85 percent of the recorded incidents which included terrorist attacks and sectarian clashes occurred in Kurram Agency in FATA, Karachi, Quetta and Gilgit.
The Tribunal then concluded:
Based on the information before it, the Tribunal does not accept that there is a real chance of the applicant being seriously harmed or subject to such attack for reason of his Shia identity in Islamabad or Rawalpindi.
The Tribunal then considered the applicant’s submission that his profile as a Turi Shia from Parachinar would result in him being targeted in other parts of Pakistan, including Islamabad and Rawalpindi[21]. The Tribunal dealt with this submission as follows:
[21] [43]
The Tribunal accepts the applicant’s assertions … that he may be identified as a Shia Turi due to his accent, his identity documents, the spelling of his name and the way he practices his religion. However, the Tribunal notes that there is nothing in the country information before it to suggest that Turis are targeted for harm in Islamabad/Rawalpindi.
…
The Tribunal has had regard to two reports published in Dawn in December 2011 indicating members of the Turi community in Rawalpindi/Islamabad had been kidnapped. While the Tribunal accepts that there may have been some instances of Turis being kidnapped in Islamabad/Rawalpindi in 2011, taking into consideration the size of the population and the limited number of reports dating back several years now, the Tribunal does not accept that there is a real chance that the applicant would be a victim of such crime or that these past incidents makes relocation unreasonable or impracticable for the applicant.
The Tribunal then considered the reasonableness or practicality of the applicant’s relocation to Islamabad or Rawalpindi[22]:
The Tribunal finds that a person such as the applicant, who is fluent in Pashtu and can read and speak the national language Urdu, could live and work in an urban city such as Islamabad or Rawalpindi. Despite the applicant’s assertions that he is only educated to a very basic level, the Tribunal finds the applicant completed Year twelve in high school and has experience working in his step-father’s business, which will assist him in finding employment.
[22] [44]
Furthermore, the Tribunal found[23]:
The Tribunal accepts that the applicant does not have any familial or friendship ties in Islamabad/Rawalpindi. However, the Tribunal has had regard to the applicant’s capability and flexibility demonstrated by him travelling to Indonesia, a foreign country where he knew no-one, and was living for a period of time before coming to Australia, where he similarly had no familial or friendship connections. The applicant’s resourcefulness and youth, in addition to the presence of a Turi population in Islamabad and Rawalpindi, suggests that the applicant would be able to manage to find shelter and employment in these cities of Pakistan without the support of family, friends and contacts to rely on and that he is capable of supporting himself outside of Parachinar. The Tribunal does not accept the applicant’s adviser’s contention that the applicant has no prospective opportunity of gaining employment outside of Parachinar.
[23] [46]
The judicial review application
These proceedings began with a show cause application filed on 10 April 2014. The applicant now relies upon an amended application filed on 26 September 2014. The grounds in that application are:
1. The Tribunal engaged in jurisdictional error by misconstruing or misapplying the relevant legal test.
Particulars
a. The Tribunal found that the applicant was a Turi Shia from Parachinar, Upper Kurram Agency in the Federally Administered Tribal Areas of Pakistan (Tribunal’s Decision at [26]), and that the applicant “faces a real chance of serious harm on the basis of his Turi ethnicity and Shia religion, now or in the reasonably foreseeable future, if he returns to his home area in Parachinar” (Tribunal’s Decision at [35] and [37]).
b. The Tribunal then considered whether the applicant’s fear of persecution is well-founded throughout Pakistan, to determine whether it is reasonable for the applicant to relocate to another area of Pakistan (Tribunal’s Decision at [38]); the Tribunal stated the test as whether it is “reasonable” (in the sense of “practicable”) for the applicant to relocate to a region of Pakistan where there is “no appreciable risk of the occurrence of the feared persecution” (Tribunal’s Decision at [38]).
c. The Tribunal misconstrued or misapplied the test that it had stated:
i. The Tribunal accepted that the applicant may be identified as a Turi Shia throughout Pakistan (Tribunal’s Decision at [43]);
ii. The Tribunal accepted that there had been “some instances of Turis being kidnapped in Islamabad/Rawalpindi” (Tribunal’s Decision at [43]); the Tribunal also accepted that as recently as November 2013 there had been sectarian attacks on Shias living in Rawalpindi, and that “there will be further attacks against Shia targets in various parts of the country as there have been for a long time in Pakistan” (Tribunal’s Decision at [42]); 4
iii. Nevertheless, the Tribunal found that there did not exist “a real chance of the applicant being seriously harmed or subjected to such attack for reason of his Shia identity in Islamabad or Rawalpindi” (Tribunal’s Decision at [42]).
2. Further, and in the alternative, the Tribunal engaged in jurisdictional error by misconstruing or misapplying the relevant legal test.
Particulars
a. In applying the relocation test (set out in 1(b) above), the Tribunal accepted that it must consider whether it was “reasonable” (in the sense of “practicable”) for the applicant to relocate to an area where he would face no appreciable risk of the feared persecution.
b. In finding that the applicant could “live and work in an urban city such as Islamabad or Rawalpindi” (Tribunal’s Decision at [44]), the Tribunal misconstrued or misapplied the test it had stated, or failed to ask itself the correct question:
i. The Tribunal accepted that the applicant was born in March 1990 and his mother, brother and three step-brothers are living in Parachinar (Tribunal’s Decision at [20]), and that his step-father had been killed in a violent attack in July 2008 (Tribunal’s Decision at [30]);
ii. The Tribunal accepted that between 2007 and 2011 the applicant’s travel to and from Parachinar was restricted due to violent clashes, and that “such restrictions on his travel impacted on him on a daily basis, including his education and the opportunity to further his studies and access medical treatment” (Tribunal’s Decision at [28]);
iii. The Tribunal accepted that the applicant did not have any familial or friendship ties in Islamabad or Rawalpindi (Tribunal’s Decision at [46]);
iv. Nevertheless, the Tribunal found that it “will be reasonable, in the sense of practicable, for the applicant to relocate to Islamabad or Rawalpindi” (Tribunal’s Decision at [47]).
3. Further, and in the alternative, the Tribunal engaged in jurisdictional error by misconstruing or misapplying the relevant legal test.
Particulars
a. The Tribunal accepted that the applicant was a Turi Shia, and that he may be identified throughout Pakistan as a member of that particular social group (Tribunal’s Decision at [43]).
b. However, in deciding whether the applicant had a well-founded fear of being persecuted (for the purposes of s 36(2)(a) of the Act), and whether there was a real risk that the applicant will suffer significant harm (for the purposes of s 36(2)(aa) of the Act), the Tribunal applied the tests in the context of the applicant being a member of the Shia social group rather than a member of the Shia Turi social group, which is a distinct social group.
Ground 3 was not pressed.
In addition to the court book filed on 21 August 2014, I have before me as evidence the affidavit of Jeffrey Robert Cabarrus made on 20 March 2015, to which is annexed a transcript of the hearing conducted by the Tribunal on 28 January 2014.
Both the applicant and the Minister made oral as well as written submissions.
Consideration
Ground 1 – did the Tribunal misconstrue or misapply the relocation principle by failing to consider the risk that the applicant might suffer harm in Islamabad or Rawalpindi in relation to the reasonableness of relocation?
Applicant’s contentions
The issue of the applicant’s relocation arose in the present case because the Tribunal concluded (as had the delegate) that the applicant faces a real chance of serious harm on the basis of his Turi ethnicity and Shia religion if he returns to his home area of Parachinar.
Despite this finding, the applicant may nevertheless not be a refugee entitled to Australia’s protection under the Convention if it be reasonable for him to relocate to a region in Pakistan where there is no appreciable risk of the occurrence of the feared persecution. This is the “relocation” test.
The relocation test was set out in SZATV v Minister for Immigration[24] per Gummow, Hayne and Crennan JJ:
[23] The Minister framed the issue, for a situation such as that presented by this appeal, as being whether it be reasonable, in the sense of practicable, for the appellant to relocate to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. …
[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.
[24] (2007) 233 CLR 18 at 26-27
The relocation test has been recently considered and applied by the High Court in Minister for Immigration v SZSCA[25]. In that case, French CJ, Hayne, Kiefel and Keane JJ discussed the “internal relocation principle” at [21]-[30]. Relevantly, the plurality judgment stated:
[25] (2014) 89 ALJR 47
[25] The factum upon which the principle of relocation operates is that there is an area in the visa applicant’s country of nationality where he or she may be safe from harm. …
[26] The UNHCR Handbook recognises that persecution of a particular group may occur in only one part of a country, and that in such situations a person will not be excluded from refugee status merely because he could have sought refuge in another part of the country, if in all the circumstances it would not have been reasonable to expect him to do so. In Januzi v Secretary of State for the Home Department [2006] 2 AC 426 at [7], Lord Bingham, in an observation referred to in SZATV, said that the corollary of this proposition is that a person will be excluded from refugee status if, in all the circumstances, it would be reasonable to expect him to relocate to another part of the same country.
…
[30] In Januzi at [15], [20], the House of Lords approved the approach of the Court of Appeal in E v Secretary of State for the Home Department [2004] QB 531 as to the nature of the test to be applied to determine whether an asylum seeker could reasonably be expected to move to a safe haven within his or her country of nationality – that is, to internally relocate. In the respects relevant to this matter, the Court of Appeal said (at [24]):
Relocation in a safe haven will not provide an alternative to seeking refuge outside the country of nationality if, albeit that there is no risk of persecution in the safe haven, other factors exist which make it unreasonable to expect the person fearing persecution to take refuge there … Where the safe haven is not a viable or realistic alternative to the place where persecution is feared, one can properly say that a refugee who has fled to another country is “outside the country of his nationality by reason of a well-founded fear of persecution”.
The nature of the test was said (at [24]) to involve “a comparison between the conditions prevailing in the place of habitual residence and those which prevail in the safe haven, having regard to the impact that they will have on a person with the characteristics of the asylum seeker”.
In MZYQU v Minister for Immigration[26] Dodds-Streeton J held that an Independent Merits Reviewer (IMR) committed jurisdictional error in applying the relocation test. In that case, in considering the applicant’s application for a protection visa, the IMR approached the question of the reasonableness of relocation by restricting consideration to the risk of “serious harm” to the applicant in the place of relocation, as defined in s.91R of the Migration Act 1958 (Cth) (Migration Act)[27]. The Court held that the IMR was in error in taking that approach, as set out at [54]-[62] of the judgment; relevantly:
[26] (2012) 206 FCR 191
[27] see [32]-[33] of the judgment
[54] While the plurality in SZATV recognised that neither s 91R nor any other provision of the Act applied to further specify the “relocation principle”, it did not state, nor is it a necessary inference, that the risk of harm in the proposed new region (of whatever level and however defined) is irrelevant in applying the principle of relocation laid down in SZATV. Conversely, neither SZATV, nor any other authority to which I was directed, holds that where the risk of harm is relevant to the reasonableness of relocation, it is restricted to a serious harm within the meaning of s 91R(1)(b).
[55] Consistently with SZATV, factors such as “other and different risks in the propounded place of internal relocation” (which, as recognised in MZYPW, may include the “risk of violence for non-Convention reasons”) may be relevant, albeit not mandatory, considerations when determining the reasonableness of a proposed relocation.
…
[61] In my opinion, therefore, the IMR’s error lay not in considering that a risk of “serious harm as required by s 91R(1)(b)” was relevant to relocation, but in implicitly treating such harm as the only level or kind of harm which could affect the reasonableness of relocation.
The applicant submits that, in the present case, the Tribunal committed the same error as that committed by the IMR in MZYQU. This is said to be apparent at [42] and [43] of the reasons. It is also said to be apparent from the first sentence of [38]:
The Tribunal must consider whether the applicant’s fear of persecution is well-founded throughout Pakistan.
At [43], the Tribunal recorded the applicant’s submission that there exists an appreciable risk of harm throughout Pakistan, including in Islamabad and Rawalpindi. It appears that the applicant provided at least two specific examples:
a)a sectarian clash that occurred in Rawalpindi on 22 November 2013 during a religious procession, which led to the death of at least eight to ten people[28]; and
b)instances of members of the Turi community in Islamabad and Rawalpindi being kidnapped (apparently reported in Dawn in December 2011)[29].
[28] [42]
[29] [43]
Nevertheless, the Tribunal found that it would be reasonable for the applicant to relocate to Islamabad or Rawalpindi. In doing so, the Tribunal’s reasoning was comprised of the following steps:
a)there are Shia communities throughout Pakistan including in urban centres such as Islamabad and Rawalpindi[30];
b)Islamabad is relatively free of sectarian violence and there have been few attacks on the Shia community in Rawalpindi[31] ;
c)not all Shia in Pakistan are at risk of harm[32];
d)the applicant may be identified as Turi Shia due to his accent, his identity documents, the spelling of his name and the way he practices his religion[33];
e)that, “[b]ased on the information before it, the Tribunal does not accept that there is a real chance of the applicant being seriously harmed or subject to such attack by reason of his Shia identity in Islamabad or Rawalpindi”[34]; and
f)nor did the Tribunal accept that “the applicant’s profile as a Turi from Parachinar or Turi Shia from Parachinar or Kurram Agency would lead to a real chance of serious harm away from his home region or that it would adversely impact on his ability to relocate”.
[30] [42]
[31] [42]
[32] [42]
[33] [42]
[34] [42]
The Tribunal expressly stated, both at [42] and [43], that it did not accept that there is a “real chance of serious harm” to the applicant in Islamabad and Rawalpindi. The applicant submits that this is not the correct test for deciding the reasonableness of relocation, as SZATV and MZTQU make clear. It is said to be apparent that the Tribunal, expressly or implicitly, has focused on s.91R and the requirement that any threat to the applicant constitute serious harm. In doing so, the Tribunal is said not to have considered the applicant’s claim that there exists an “appreciable risk of harm throughout Pakistan”.
The asserted error is highlighted by the fact that the Tribunal expressly accepted that there had been “violent incidents against Shia targets in various parts of the country” and accepted that there would be further such incidents in the future. By allegedly focusing only on whether there was a “real chance of the applicant being seriously harmed or subject to attack”, the Tribunal is said not to have considered any lesser degrees of harm. The applicant contends that the failure to consider any lesser degrees of harm was an error[35].
[35] see also SZSSM v Minister for Immigration & Anor [2013] FCCA 1489 at [87]-[90]
At [47] of its reasons, the Tribunal did state that it considers “there is less than a remote chance of the applicant … being caught up in generalised or sporadic violence which may occur in the country including in Islamabad or Rawalpindi”, but nevertheless finds that the applicant’s relocation to “these urban centres” would be reasonable.
Minister’s contentions
In determining whether it would be reasonable, in the sense of practicable, for the applicant to relocate to another part of Pakistan, the Tribunal was required to conduct two inquiries. First, it had to consider whether the applicant faced a real chance of persecution in the proposed safe haven. Secondly, if he did not, the Tribunal had to consider whether it would be reasonable for the applicant to move to that place. But these inquiries feed into the broader question that the Tribunal had to ask, which is whether the applicant had a well-founded fear of persecution with respect to Pakistan as a whole. This explains the opening sentence in [38] of the Tribunal’s reasons. Contrary to the applicant’s submissions, the Tribunal would have made a grievous error had it not considered whether his fear was well-founded in relation to Pakistan as a whole[36].
[36] Randhawa v Minister for Immigration (1994) 52 FCR 437 at 440G-441A, 442C-E per Black CJ, approved by the High Court in SZATV v Minister for Immigration (2007) 233 CLR 18 at 22-23 [10] per Gummow, Hayne and Crennan JJ
The Minister submits that the Tribunal’s findings at [42]-[43], only a selection of which is set out in the applicant’s submissions, do not suggest that the Tribunal excluded from its consideration of whether the applicant could relocate to Islamabad or Rawalpindi any harm that is not serious harm within the meaning of s.91R(1)(b) of the Migration Act. The following considerations are said to support this conclusion:
a)the Tribunal noted country information that indicated that the situation in places such as Islamabad was relatively free from the threat of militant/terrorist, sectarian and politically-motivated violence[37];
b)the Tribunal considered the applicant’s post-hearing submissions which suggested that there was an appreciable risk of “harm” throughout Pakistan, including in Islamabad and Rawalpindi[38]. That submission was made by reference to a sectarian clash that had occurred in Rawalpindi on 22 November 2013 during a Shia religious procession[39];
c)the DFAT Country Information Report on Pakistan dated 29 November 2013 (DFAT Country Report) described Islamabad as being relatively free from sectarian violence, and the Eligibility Guidelines published by the United Nations High Commissioner for Refugees (UNHCR Guidelines) indicated that few attacks on Shias had occurred in Rawalpindi[40];
d)the Tribunal accepted that there have been “incidents of violence against Shia” and that there will be such further attacks, but it did not accept that “all Shia in Pakistan are at risk of harm”[41];
e)the Tribunal considered the applicant’s evidence that his profile as a Turi from Parachinar “would result in him being targeted in other parts of Pakistan”. However, it considered that nothing in the material before it supported the notion that Turis are targeted for “harm” in Islamabad or Rawalpindi[42];
f)the Tribunal considered the assertion made in the applicant’s post-hearing submissions that Turi Shias are discriminated against by other groups in Pakistan. However, it found that this assertion was not supported by the country information[43];
g)the Tribunal also had regard to reports that indicated that Turis in Rawalpindi and Islamabad had been kidnapped. Nonetheless, it found that, in the light of the size of the population in those cities and the fact that those reports were limited in number and outdated, the applicant did not face a real chance of falling victim to such crime[44];
h)the Tribunal found that the applicant’s personal characteristics did not fit with those whom he identified as being at risk of “harm”[45];
i)the Tribunal had regard to the applicant’s evidence that he “will be recognised if he works in a shop” and will be “harmed”, but found that there was nothing to suggest that his employment in a shop in Islamabad would result in his being “harmed” or targeted[46]. The Tribunal further found that the applicant had operated his step-father’s shop for a “very limited period of time” and, in those circumstances, did not accept that he would face “a chance of harm in the day to day activities associated with this particular field of employment”[47].
[37] at [40]
[38] at [42]
[39] at [42]
[40] at [42]
[41] at [42]
[42] at [43]
[43] at [43]
[44] at [43]
[45] at [44]
[46] at [45]
[47] also at [45]
The Minister submits that the Tribunal did not proceed upon the basis that harm that did not rise to the level of “serious harm” under s.91R of the Migration Act could not have any relevance to the question whether the applicant could reasonably relocate within Pakistan; on the contrary, it considered the risk of the applicant suffering harm “of an unspecified nature or level”,[48] but found that he would not be so harmed in Islamabad or Rawalpindi.
[48] MZYQU v Minister for Immigration (2012) 206 FCR 191 at 201 [60] per Dodds-Streeton J
While it is true that, in the final sentences in each of [42], [43] and [45], the Tribunal asked itself whether the applicant would face persecution in the putative places of relocation on the grounds of his Shia religion, Turi ethnicity and having worked as a shopkeeper in Parachinar, the relocation test required that question to be asked.[49] Whether the applicant would face serious harm in Islamabad or Rawalpindi was relevant to the question whether he could relocate to those places.[50] What the Tribunal did not do was to say that, because certain harm (e.g. generalised violence) did not constitute serious harm within the meaning of s.91R, it could not have any relevance to relocation. To the extent that he submits otherwise, the applicant’s submissions at [46]-[47] are not correct.
[49] SZATV v Minister for Immigration (2007) 233 CLR 18 at 25-27 [19], [23]-[25] per Gummow, Hayne and Crennan JJ; Minister for Immigration v SZSCA (2014) 89 ALJR 47 at 52 [23], [25] per French CJ, Hayne, Kiefel and Keane JJ
[50] MZYQU v Minister for Immigration (2012) 206 FCR 191 at 201 [61] per Dodds-Streeton J
Furthermore, and contrary to the applicant’s submissions, the Minister submits that the Tribunal did consider the claim that country information showed that there existed an appreciable risk of harm throughout Pakistan, but rejected it by preferring other country information, including the DFAT Country Report[51]. The Tribunal does not fall into jurisdictional error by preferring one body of country information over another[52].
[51] at [42]
[52] VQAB v Minister for Immigration [2004] FCAFC 104 at [26] per Beaumont, Weinberg and Crennan JJ
In the Minister’s submission, it is not correct to say that the Tribunal only considered the risk of the applicant sustaining serious harm within the meaning of s.91R of the Migration Act. The Tribunal had regard to the DFAT Country Report and UNHCR Eligibility Guidelines in finding that not all Shia in Pakistan were at risk of “harm” (of an unspecified degree). When read with the country information referred to at [42], the obvious inference to be drawn from this finding is that the applicant’s risk of harm in Islamabad or Rawalpindi on the basis of his religious beliefs was not real (or was remote). This is consistent with the finding in the final sentence in [42] (which needs to be read with the penultimate sentence), that there was not a real chance that the applicant would be “subject to such attack”, that is, a sectarian or terrorist attack, on the basis of his being a Shia in Islamabad or Rawalpindi.
The Minister submits that the risk (or lack thereof) of the applicant being subjected to generalised or sectarian violence was addressed at [40], [42] and [43] of the Tribunal’s reasons. However, the applicant did not, in fact, advance a claim to the effect that he could not relocate to Islamabad or Rawalpindi because he would be subjected to generalised violence in the pure sense (i.e. completely unrelated to his Shia religion or Turi ethnicity); by “generalised violence” in this context, the applicant meant sectarian violence. This is borne out by the applicant’s submissions at CB 176-179.
Resolution
The Tribunal’s reasons in relation to the issue of relocation are set out at [42]-[47] of its statement of reasons[53]:
42.The Tribunal however notes that in addition to Lahore, the Tribunal discussed with the applicant the possibility of relocation to Islamabad/Rawalpindi. The Tribunal finds that there are Shia communities found throughout Pakistan including in urban centres such Islamabad and Rawalpindi. The Tribunal has taken into consideration the submissions made by the applicant’s adviser following the hearing that the country information supports that there exists an appreciable risk of harm throughout Pakistan, including the cities of Islamabad/Rawalpindi. The Tribunal notes the applicant adviser’s reference to a sectarian clash that occurred in Rawalpindi on 22 November 2013 during a Shia religious procession, which reportedly resulted in the deaths of at least eight to ten people. However, the Tribunal has taken into consideration the DFAT Country Report cited above, as it is required to do, which describes Islamabad as being relatively free of sectarian violence, as well as UNHCR’s Eligibility Guidelines referred to by the applicant’s adviser, which identifies the areas where attacks against Shia processions and religious gatherings and sites predominantly occur and finds that there have been few attacks on the Shia community, such as the recent incident in November 2013, in Rawalpindi. While there have been incidents of violence against Shia and there will be further attacks against Shia targets in various parts of the country as there have been for a long time in Pakistan, dating from the mid-1980s according to the UNHCR Eligibility Guidelines, the Tribunal does not accept on the country information before it, including the information provided by the applicant’s adviser, that all Shia in Pakistan are at risk of harm. The Tribunal notes, as it did in the hearing, according to the Pakistan Institute for Peace Studies, over 85 percent of the recorded incidents which included terrorist attacks and sectarian clashes occurred in Kurram Agency in FATA, Karachi, Quetta and Gilgit. Based on the information before it, the Tribunal does not accept that there is a real chance of the applicant being seriously harmed or subject to such attack for reason of his Shia identity in Islamabad or Rawalpindi.
43.The Tribunal has taken into consideration the applicant’s evidence that his profile as a Turi from Parachinar would result in him being targeted in other parts of Pakistan, particularly urban centres such Islamabad and Rawalpindi. The Tribunal accepts the applicant’s assertions, as outlined in his submission from his adviser received following the hearing, that he may be identified as a Shia Turi due to his accent, his identity documents, the spelling of his name and the way he practices his religion. However, the Tribunal notes that there is nothing in the country information before it to suggest that Turis are targeted for harm in Islamabad/Rawalpindi. Although it is claimed in the submission from the applicant’s adviser received following the hearing, that the applicant instructs that Turi Shias are discriminated against by all other groups in Pakistan including non-Turi Shias, the Tribunal notes that there is nothing in the country information before it, including the information provided by the applicant or his adviser, which supports this contention. The Tribunal has had regard to two reports published in Dawn in December 2011 indicating members of the Turi community in Rawalpindi/Islamabad had been kidnapped. While the Tribunal accepts that there may have been some instances of Turis being kidnapped in Islamabad/Rawalpindi in 2011, taking into consideration the size of the population and the limited number of reports dating back several years now, the Tribunal does not accept that there is a real chance that the applicant would be the victim of such crime or that these past incidents makes relocation unreasonable or impracticable for the applicant. The Tribunal is further supported in this finding on the basis of reports of Turi groups such as the Youths of Parachinar (YoP) routinely staging political rallies in Islamabad without incident. In light of this information, the Tribunal does not accept that the applicant’s profile as a Turi from Parachinar or Turi Shia from Parachinar or Kurram Agency would lead to a real chance of serious harm away from his home region or that it would adversely impact on his ability to relocate.
44.The Tribunal finds that a person such as the applicant, who is fluent in Pashtu and can read and speak the national language Urdu, could live and work in an urban city such as Islamabad or Rawalpindi. Despite the applicant’s assertions that he is only educated to a very basic level, the Tribunal finds the applicant completed Year twelve in high school and has experience working in his step-father’s business, which will assist him in finding employment. The Tribunal has considered the applicant’s claim that well-educated people, professionals and students are being targeted. Given the applicant’s own assertions that he acquired only a basic level of education, the Tribunal does not accept that the applicant has the characteristics of those he identified as being at risk of harm. Nor does the Tribunal accept on the basis of the information before it that there is targeting of the well-educated, professionals and students in Islamabad or Rawalpindi as the applicant contended.
45.The Tribunal notes the applicant’s evidence that he will be recognised if he works in a shop and will be harmed. However, the Tribunal does not accept that there is anything to suggest that the applicant’s employment in a shop in Islamabad would result in him being harmed or targeted. The Tribunal does not accept the applicant’s assertions, as outlined in the submission from his adviser following the hearing, that he has an elevated profile by virtue of being a “renewed Turi shop keeper in Parachinar” and as such he would more easily attract the adverse attention of religious extremists. The Tribunal finds on the basis of the applicant’s evidence that he operated his step-father’s shop on his own for a very limited period of time, no more than two months, and in these circumstances the Tribunal does not accept that his profile can be considered prominent or that he will face a chance of harm in the day to day activities associated with this particular field of employment. The Tribunal is therefore not satisfied that the applicant would face a real chance of serious harm for that reason.
46.The Tribunal accepts that the applicant does not have any familial or friendship ties in Islamabad/Rawalpindi. However, the Tribunal has had regard to the applicant’s capability and flexibility demonstrated by him travelling to Indonesia, a foreign country where he knew no-one, and was living for a period of time before coming to Australia, where he similarly has no familial or friendship connections. The applicant’s resourcefulness and youth, in addition to the presence of a Turi population in Islamabad and Rawalpindi, suggests that the applicant would be able to manage to find shelter and employment in these cities of Pakistan without the support of family, friends and contacts to rely on and that he is capable of supporting himself outside of Parachinar. The Tribunal does not accept the applicant’s adviser’s contention that the applicant has no prospective opportunity of gaining employment outside of Parachinar.
47.Based on the above, the Tribunal considers that there is not more than a remote chance that the applicant would face persecution on account of his Shia religion, his Turi ethnicity, being a former resident of Parachinar in Kurram Agency, a combination of these factors or any other reason now or in the reasonably foreseeable future if he were to return to live elsewhere in Pakistan, away from Parachinar, such as Islamabad or Rawalpindi. The Tribunal has had regard to the fact that the United Nations High Commissioner for Refugees 2012, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Members of Religious Minorities from Pakistan, has identified members of the Shia community, particularly those in areas where Taliban–affiliated groups are active, in need of international refugee protection on account of their religion and/or political opinion, however this is qualified as dependant on the individual circumstances of the case. While the Tribunal considers that there is less than a remote chance of the applicant being targeted on the basis of his Shia religion or as a member of the Turi tribe from Parachinar or being caught up in generalised or sporadic violence which may occur in the country including in Islamabad and Rawalpindi, the Tribunal finds it is reasonable for the applicant to relocate to these urban centres in these circumstances. Taking into consideration the independent information discussed above and an assessment of the applicant’s particular circumstances including his age, education, work experience, ability to find work, his lack of familial connections, tribal connections and demonstrated capability, the Tribunal finds that it will be reasonable, in the sense of practicable, for the applicant to relocate to Islamabad or Rawalpindi. Accordingly, the Tribunal is not satisfied that the applicant holds a well-founded fear of persecution.
[53] CB 198-200
I accept that, on a fair reading, the Tribunal considered the risk of harm facing the applicant outside his home region, both in terms of the risk of him facing persecution and in relation to the reasonableness of relocation. It is tolerably clear that the Tribunal preferred country information indicating that the applicant would not face a real chance of being persecuted for a claimed Convention reason in Islamabad or Rawalpindi. As the Minister notes in his submissions, that was a necessary part of the Tribunal’s consideration of the relocation principle. Secondly, and critically, the Tribunal also considered the risk of harm to the applicant in relation to considering whether it would be reasonable, in the sense of practicable, for him to relocate to those places. This is clear from the final two sentences of [43] of the Tribunal’s reasons. I accept the Minister’s submission that it was necessary for the Tribunal to consider the application of s.91R of the Migration Act in considering the risk of persecution in Pakistan as a whole and that the Tribunal did not fall into the error identified in MZYQU, in considering the reasonableness of relocation.
The Tribunal concluded at [47] that a chance of harm that was less than a remote chance did not render it unreasonable for the applicant to relocate to Islamabad or Rawalpindi. That conclusion was open to the Tribunal on the material before it and I see no error in the Tribunal’s approach.
I reject Ground 1.
Ground 2 – did the Tribunal misconstrue or misapply the relocation principle by failing to consider the personal circumstances of the applicant bearing upon the reasonableness of relocation?
Applicant’s contentions
The applicant once again draws attention to the Tribunal’s reasons at [44] and [46][54]. Essentially, the Tribunal found that the individual circumstances of the applicant which made it reasonable or practicable for the applicant to relocate to Islamabad or Rawalpindi were:
a)the applicant is fluent in Pashtu and can read and speak the national language Urdu;
b)the applicant has completed year 12 in high school which will assist him in finding employment;
c)the applicant had experience working in his step-father’s business;
d)the applicant demonstrated “capability and flexibility” by travelling to Indonesia where he knew no one and lived for a period of time;
e)the applicant demonstrated “capability and flexibility” by travelling to Australia, where he also had no familial or friendship connections; and
f)the applicant’s “resourcefulness and youth” suggest that he will manage to find shelter and employment without the support of family, friends and contacts.
[54] CB 199-200
The applicant contends that at least some of the Tribunal’s findings were contrary to the evidence before the Tribunal. Secondly, the applicant did not travel to either Indonesia or Australia on his own, without anyone he knew or any family members. As set out in his Entry Interview[55], the applicant travelled from Pakistan to Indonesia with his cousin, Kamal Hussain. He was accompanied on the boat from Indonesia to Australia by his cousins Noor Hussain and Kamal Hussain, a relative Sabir Hussain, and a friend Tajir Hussain. All of those persons went missing when the boat they were travelling on sank on its way to Australia. It was not by any demonstrated “capability and flexibility” or “resourcefulness and youth” that the applicant ended up in Australia on his own. When he set out for Australia, he expected to arrive here accompanied by relatives and friends. Rather, it was only because the boat sank and his relatives and friends perished that he ended up in Australia on his own. It was his rescue by the Australian Navy that resulted in him arriving in Australia and making a protection claim in this jurisdiction.
[55] CB 21-23, 27
Thirdly, as to the applicant’s education, the Tribunal had noted[56] (that Kurram Agency’s “health, education and agriculture infrastructure” had been destroyed. The applicant had also claimed[57] that the closure of the Thall Road in 2007 had restricted his access to “basic services including adequate medical and educational facilities”[58]. The applicant contends that the Tribunal does not take any of this into account of its assessment of the applicant’s education when considering the reasonableness of relocation.
[56] at [28]
[57] CB 80
[58] see also CB 191
Fourthly, as to the applicant’s work experience in his step-father’s business, the Tribunal accepted that this was only for a period of two months; indeed the Tribunal described the applicant as working in his step-father’s business “for a very limited period of time”. The applicant had claimed that he took over the business after his step-father had been killed, that he ceased working after two months because he feared that he would also be killed, and when he was working his work involved meeting a person near the Afghan border to purchase goods[59]. Indeed, in his Entry Interview[60] the applicant listed his employment as a farmer.
[59] CB 192
[60] CB 17
However, in considering the reasonableness of the applicant’s relocation to Islamabad or Rawalpindi, the Tribunal simply states that the applicant’s “experience working in his step-father’s business … will assist him in finding employment”. That basis for that conclusion is unexplained.
Fifthly, the applicant had never lived alone in Pakistan. The Tribunal accepted that prior to leaving Pakistan the applicant had lived with his mother, brother and three step-brothers[61]. The Tribunal also accepted that the applicant has no familial or friendship ties in Islamabad or Rawalpindi[62].
[61] at [20]
[62] at [45]
This ground of attack is not merely an attempt by the applicant to quibble with the merits of the Tribunal’s decision. Rather, from the Tribunal’s reasons, he submits that there is no evidence that the Tribunal actually undertook the task required of it to consider whether it was reasonable, in the sense of practicable, for him to relocate to Islamabad or Rawalpindi.
The High Court in SZATV explained that it was necessary for the decision-maker to consider the applicant’s personal circumstances in deciding whether it is reasonable, in the sense of practicable, that the person relocate.
That requires genuine consideration, not mere lip service to the test[63].
[63] see eg, in a different context, DZADQ v Minister for Immigration [2014] FCA 754 at [61]; see also SZBJI v Minister for Immigration [2006] FCA 216 at [22]
Recently the High Court in SZSCA at [31] held that application of the relocation test “clearly directs attention to the respondent’s ability to earn an income from other sources and to his needs and those of his family”. In the present case, the application of the relocation test therefore required the Tribunal to genuinely consider the applicant’s language skills, education, work skills, family and tribal links to decide whether it was reasonable, in the sense of practicable, for him to relocate from Parachinar to Islamabad or Rawalpindi.
The applicant submits that, in the absence of country information suggesting otherwise, it may strike the reasonable person as an astonishing finding that a young farmer from Parachinar who has no family members or tribal links in Islamabad or Rawalpindi to support him, may practicably relocate to Islamabad or Rawalpindi. Nevertheless, that is the decision the Tribunal reached, and the Tribunal did not cite any independent country information which might otherwise dispel one’s astonishment at the finding.
The applicant submits that, stripped of epithets such as “capability and flexibility” and “resourcefulness and youth”, there is nothing in the Tribunal’s reasons that show that it has genuinely considered the practical circumstances facing the applicant in relocating to Islamabad or Rawalpindi. Indeed, it got some of the facts wrong (such as him travelling alone with no-one he knew and intending to come to Australia on his own) and simply overlooked other facts (such as that he was a farmer and had no experience working in any urban employment such as would be available in Islamabad or Rawalpindi). Given these errors, there is no basis for the Tribunal’s finding[64] (at Reasons) that it is practicable for the applicant to relocate to Islamabad or Rawalpindi.
[64] at [47]
Minister’s contentions
The Minister concedes that, although pleaded in such a way as to suggest that the Tribunal misunderstood or misapplied the relocation test, and despite the applicant’s protestations in [59] of his submissions, this ground is nothing more than an appeal to the merits; a complaint that the evidence before the Tribunal supported the conclusion that it would not be reasonable for the applicant to relocate to Islamabad or Rawalpindi and that the Tribunal should have so found. Importantly, the applicant is not submitting that, in considering the reasonableness of relocation, the Tribunal failed to take into account certain claims made by him in opposition to relocation.
The Minister submits that, when considering this ground, the Court ought to be mindful of the following principles:
a)whether it is reasonable, in the sense of practicable, for an applicant to relocate “depends upon the framework set by the particular objections raised to relocation”[65];
b)the reasonableness of relocation is a question of fact for the Tribunal[66];
c)in addressing relocation, the Tribunal is not under an obligation to elaborate on every aspect of its practical application[67];
d)factual errors that the Tribunal makes in considering relocation will not vitiate the Tribunal’s decision[68];
[65] SZMCD v Minister for Immigration (2009) 174 FCR 415 at 439 [124] per Tracey and Foster JJ
[66] SZBGC v Minister for Immigration [2005] FCA 1168 at [26] per Emmett J
[67] SZBGC v Minister for Immigration [2005] FCA 1168 at [26] per Emmett J; SZBJI v Minister for Immigration [2006] FCA 216 at [22] per Allsop J
[68] SZFCB v Minister for Immigration [2005] FCA 961 at [20]-[21], [24] per Sackville J
With these principles in mind, the Minister responds to the applicant’s submissions as follows.
As to the applicant’s proficiency in languages, the Tribunal accepted, at [20][69], that he “is fluent in Pashtu and can speak Urdu and a little English”. This is consistent with the applicant’s answers to questions regarding his ability to speak, read and write other languages in his visa application form[70]. The Tribunal went on to say that the applicant can also read Urdu[71], which it may have derived from its earlier acceptance that he speaks that language. In any event, it is of no consequence as far as the validity of the Tribunal’s decision is concerned.
[69] CB 189
[70] CB 43
[71] CB 199 [44]
In so far as the applicant is advancing a “no evidence” challenge to this finding, it is misconceived. While the absence of evidence for a factual finding will amount to an error of law[72], it will only amount to a jurisdictional error where the fact of which there was presumptively no evidence was “a precondition to the exercise of jurisdiction”[73]. A jurisdictional error will not necessarily ensue in the event that the Tribunal makes a finding unsupported by evidence even if the finding is a critical step in the Tribunal’s reasoning process[74]. The Tribunal’s reliance upon the finding must affect the exercise of its power[75]. That can hardly be said of the impugned finding in the present case.
[72] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-356 per Mason CJ; Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 at 418 [91] per Hayne, Heydon, Crennan and Kiefel JJ
[73] Minister for Immigration v SGLB (2004) 78 ALJR 992 at 998-999 [39] per Gummow and Hayne JJ. See also Australian Postal Corporation v D’Rozario (2014) 222 FCR 303 at 309 [16] per Besanko J, 324 [64] per Jessup J
[74] Australian Postal Corporation v D’Rozario (2014) 222 FCR 303 at 324 [66] per Jessup J, 332 [108] per Bromberg J
[75] Australian Postal Corporation v D’Rozario (2014) 222 FCR 303 at 333 [109]-[110] per Bromberg J. See, generally, Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 at 571-572 [66]-[67] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ
As to the applicant’s submission concerning his travel to Australia, the Tribunal did not find that the applicant travelled to Indonesia or Australia “on his own, without anyone he knew or any family members”. Rather, it considered that the applicant demonstrated “capability and flexibility” by travelling to Indonesia and Australia, countries “where” he had “no familial or friendship connections”. In other words, the applicant had no family and/or friends in those countries. Read in that way, the Tribunal’s findings are perfectly consistent with the fact that the applicant travelled to Indonesia and Australia with relatives and a friend.
As the applicant himself acknowledges, the Tribunal accepted, at [28][76], that the conflict in Pakistan between April 2007 and the beginning of 2011 resulted in the destruction of the health, education and agriculture infrastructure in the Upper Kurram Agency. Those findings are, relevantly, consistent with the claim in the applicant’s submissions (to the Tribunal) that road closures resulted in his facing “restrictions on [his] access to basic services including adequate … educational facilities”. At [44][77], the Tribunal referred to the applicant’s educational history and accepted that he had been educated to what he described as “a very basic level”[78], although he did complete high school. That finding is consistent with the information referred to above, and in circumstances where the Tribunal has referred to that information elsewhere in its reasons, a reviewing court should be slow to infer that it was not cognisant of this information when it came to make its findings at [44][79].
[76] CB 195
[77] CB 199
[78] CB 180
[79] CB 199. Cf Applicant WAEE v Minister for Immigration (2003) 75 ALD 630 at 641 [47] per French, Sackville and Hely JJ
The complaint in the applicant’s submissions seems to be that the Tribunal did not state the basis for its finding that the applicant’s “experience working in his step-father’s business … will assist him in finding employment”. The finding was based on the applicant’s own evidence that he worked in his step-father’s shop, albeit for a short time[80], the Tribunal’s acceptance of country information that suggested that urban centres such as Islamabad “offer great opportunities for employment”[81], the applicant’s resourcefulness, youth and the presence of a Turi population in Islamabad and Rawalpindi[82]. The Tribunal did not find that the applicant will, without qualification, secure employment in Islamabad or Rawalpindi; it found that his work experience will “assist” him in doing so. That finding was open to the Tribunal. In addressing relocation, there was no duty on the Tribunal to elaborate upon every aspect of its practical application,[83] relevantly, the types of jobs for which the applicant could apply in Islamabad or Rawalpindi and the likelihood of his securing those jobs.
[80] CB 62 [26], 81, 179, 181, 196 [31]
[81] at CB 198 [40]
[82] CB 200 [46]
[83] SZBJI v Minister for Immigration [2006] FCA 216 at [22] per Allsop J
As to the applicant’s submission at [58], the Tribunal did not find that the applicant had “lived alone in Pakistan” and that that was relevant to the reasonableness of relocation. The Tribunal accepted the applicant’s evidence that he does not have any family or friends in Islamabad or Rawalpindi[84], but was not persuaded that the lack of such connections rendered relocation to those places not reasonable.
[84] CB 200 [46], [47]
The Tribunal did not merely pay lip service to the relocation test or not genuinely consider the applicant’s personal circumstances and how they might affect the reasonableness of relocating to Islamabad or Rawalpindi. On the contrary, the Tribunal had regard to matters including the applicant’s education, work experience, family connections (or absence thereof), age, the risk of his suffering harm (of whatever degree), Shia religion, Turi ethnicity, his profile as a “renewed Turi shopkeeper in Parachinar”, proficiency in languages, capability and flexibility in travelling to Indonesia and Australia, and the presence of Turis in the proposed places of relocation. It can hardly be said that the Tribunal dealt with the question of relocation in a summary way, as it did in NAIZ v Minister for Immigration[85] and SZBJI v Minister for Immigration[86].
[85] [2005] FCAFC 37
[86] [2006] FCA 216
As an aside, the Minister notes that the applicant has taken out of context what the majority said in Minister for Immigration v SZSCA[87]. Their Honours did not hold that “application of the relocation test ‘clearly directs attention to the respondent’s ability to earn an income from other sources and to his needs and those of his family.’” Rather, addressing “the impact on the respondent of remaining in Kabul and not driving trucks on the roads he usually frequented in the course of his business” was said to raise for the Tribunal’s consideration those matters referred to in the passage quoted immediately above.
[87] (2014) 89 ALJR 47 at 54 [31]
Resolution
As has been noted by the Federal Court recently[88], the merits of a Tribunal decision may be relevant to an assessment of jurisdictional error. It was reasonable for the Tribunal at [44] of its decision statement[89] to find that the applicant’s language skills and education would be sufficient to support his relocation to Islamabad or Rawalpindi. The reference to the applicant’s employment history in his step-father’s business was based on limited information about a brief period of employment but it was open to the Tribunal to place some weight on that information.
[88] SZTWL v Minister for Immigration [2015] FCA 56 at [4]-[5]
[89] CB 199
At [46] the Tribunal referred to the applicant’s youth, which was open to it, and resourcefulness (which requires some examination). Reference was made to the applicant’s lack of a family or friendship network in Islamabad or Rawalpindi. The Tribunal’s reference to resourcefulness in relation to his travel to Australia might seem misplaced in circumstances where he travelled with family and friends who died on the voyage to Australia and where the applicant himself would also have died had he not have been rescued by the Australian Navy. From the point of rescue onwards, the applicant has had no need or opportunity to demonstrate any resourcefulness. Whether it was he or others who arranged for the subsistence of the group or individuals within it in Indonesia is a matter of conjecture. If the mere fact of journeying from one’s home country to Australia (even in difficult circumstances) was sufficient to demonstrate skills necessary to relocate internally in that country of origin, then the Tribunal would have an easy task. More is required. It is necessary for the Tribunal to look at the actual circumstances in the proposed place to which the applicant would be expected to relocate. That the Tribunal did. Read in context, in my opinion the Tribunal, in referring to the applicant’s resourcefulness, was merely noting that the applicant appeared to have demonstrated some resourcefulness prior to coming to Australia and recognised that he would need to be resourceful in order to find shelter and sustenance and employment after the relocation.
In my opinion, the Tribunal in this case fulfilled the task explained by the High Court in SZATV in considering the applicant’s personal circumstances in order to decide whether it is reasonable, in the sense of practicable, that he relocate. I do not think that the recent decision of the High Court in SZSCA assists the applicant. The Tribunal was not expecting the applicant to give up a profession or calling for the purposes of relocation. Given the applicant’s limited skills and employment background, he would be starting afresh. The Tribunal reasoned that the applicant would find something to sustain him because of his youth, his language skills and education level and his resourcefulness. Bearing in mind the country information considered by the Tribunal concerning the opportunities available in Islamabad and Rawalpindi, it cannot be said that the conclusions reached by the Tribunal were not open to it on the material before it. Neither, in my opinion, did the Tribunal misconstrue or misapply the relevant legal test. There is necessarily an element of speculation in the Tribunal’s reasoning but that element of speculation is not, in my opinion, inconsistent with the proper consideration of the relocation principle.
I reject Ground 2.
Conclusion
The applicant has failed to establish any jurisdictional error in the decision of the Tribunal. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 24 April 2015
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