MZADT v Minister for Immigration
[2015] FCCA 2702
•29 October 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZADT v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2702 |
| Catchwords: MIGRATION – Judicial review of decision to refuse the applicant the grant of a protection visa – whether the Tribunal considered a claim made by the applicant – jurisdictional error in the Tribunal – application remitted for re-hearing. |
| Legislation: Migration Act 1958 (Cth) |
| Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 2003 Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 Minister for Immigration and Ethic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114. MZWDG v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 427 Randhawa v MILGEA (1994) 52 FCR 437 |
| Applicant: | MZADT |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 848 of 2014 |
| Judgment of: | Judge McGuire |
| Hearing date: | 1 June 2015 |
| Date of Last Submission: | 1 June 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 29 October 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Reynolds |
| Solicitors for the Applicant: | Fragomen |
| Counsel for the Respondent: | Mr Goodwin |
| Solicitors for the Respondent: | Australian Government Solicitors |
ORDERS
The name of the Second Respondent be amended to read ‘Administrative Appeals Tribunal’.
The decision of the Refugee Review Tribunal made 3 April 2014 be quashed.
The Application be remitted to the Administrative Appeals Tribunal for rehearing.
The First Respondent pay the Applicant’s costs as agreed or taxed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 848 of 2014
| MZADT |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review pursuant section 476 of the Migration Act1958 (Cth) (“the Act”) of a decision of the Refugee Review Tribunal (as it then was) (“the Tribunal”) affirming a determination of the Minister’s delegate not to grant a Protection (Class XA) Visa (“the visa”) pursuant to section 65.
Background.
The applicant is a Shia Pashtun Muslim. He is from the Bangash Tribe with associations through his mother and wife to the Turi Tribe from the Kurram Agency in Pakistan.
The applicant’s claims for a protection visa can be summarised from his own submissions and materials as follows:
(i) He is a Pashtun and Shia Muslim. He is a member of the Bangash Tribe from Kurram Agency Pakistan. His mother and wife are members of the Turi Tribe;
(ii) Shias other than those from Kurram Agency being Hazaras or Punjabis hold animosity towards the Pashtun;
(iii) Pashtun outside of Kurram Agency are Sunni and reject Shias;
(iv) Those of the Bangash and Turi Tribes are opposed to and reject the Taliban;
(v) The applicant had previously worked in Rawalpindi. His experience was of isolation and being cautious in approaching strangers;
(vi) During this period the applicant would travel back to Kurram Agency each two to three months to visit his family;
(vii) The applicant was unwelcome at mosques in Rawalpindi by reason of being a Shia and/or Pashtun;
(viii) In April 2007 there was war in Kurram Agency resulting in the roads between Parachinar and Pershawar being blocked by the Taliban with attacks and murder of Shias.
On 17 August 2012 the applicant completed an Irregular Maritime Arrival Entry interview. He deposed to being a Pashtun of Shia religion from Parachinar. He sought protection on account of danger from the Taliban, snipers and bomb blasts together with IGDs on the roads.
The Minister’s delegate refused the application on 18 July 2013. The applicant lodged a merits review application with the Tribunal on 26 August 2013. The applicant appeared at the hearing on 29 November 2013. The Tribunal had before it, at the hearing, additional RRT country advice including:
(i) That Shiite Pashtuns had possibly developed a group identity based on religion and tribe/clan and traditionally resided in Kurram Agency or Orakazi Agency areas of Pakistan;
(ii) There was a history of conflict with Sunni Pashtuns who are the overwhelming majority of the population;
(iii) That almost all Shias in Pakistan are non-Pashtuns and that it is unlikely that the applicant would be able to relocate or resettle with a Shia community.
The Tribunal affirmed the delegate’s decision on 3 April 2014.
The applicant now relies on an amended application to this Court filed 17 November 2014, which raises four grounds of complaint as follows:
(1) The Tribunal engaged in jurisdictional error by failing to consider a claim before it:
Particulars:
(a) The Tribunal did not consider the claim before it that the applicant faced a well-founded fear of persecution or significant harm while travelling on the roads in Pakistan;
(b) The Tribunal did not consider the claim before it that, were the applicant to return to Pakistan and relocate to Rawalpindi, he held a well-founded fear of persecution because he would periodically travel on the roads to see his family in the Kurram Agency (ie travel along the roads where he held a well-founded fear to an area where he held a well-founded fear).
(2) The Tribunal engaged in jurisdictional error by failing to consider a claim before it or by failing to ask itself the right question.
Particulars
(a) The Tribunal did not ask itself whether the applicant faced a well-founded fear of persecution in the process of travelling to Rawalpindi.
(b) The Tribunal did not ask itself what risks the applicant would face were he to travel to Rawalpindi upon his return and whether relocation was reasonably practicable in light of these risks.
(3) The Tribunal engaged in jurisdictional error by failing to ask itself the right question.
Particulars
(a) The Tribunal applied in the internal relocation principle, yet did not reject the propositions that, upon his return to Pakistan the applicant would travel along the roads between Rawalpindi and the Kurram Agency to see his family and that such travel could give rise to a well-founded fear of persecution or significant harm.
(b) Despite the circumstance set out in subparagraph (a), the Tribunal nevertheless failed to ask itself whether the applicant could reasonably be expected to not engage in such travel that would put him at risk.
(4) The Tribunal engaged in jurisdictional error by failing to deal with the claims before it or by failing to apply the correct test or applicable law.
Particulars
(a) The Tribunal failed to lawfully deal with the claims before it relating to the reasonable practicability or the practical realities of the proposed relocation to Rawalpindi.
The Tribunal’s decision.
The Tribunal accepted that the applicant is a Shia and a Pashtun of the Bangash Tribe from Kurram Agency. It was accepted that the applicant faced a real chance of serious or significant harm in Kurram Agency.
Relevantly to the issues here, the Tribunal at [46] and [48] noted and found:
[46] The Tribunal has considered the country information in relation to the Kurram Agency. The violence in the region has been an ongoing occurrence since the 1980s, with upswings of violence reflecting domestic and regionally located issues. The most recent violence began in April 2007, with a peak in 2007 and 2008, but with sporadic events occurring until present. The Parachinar-Thall Road, the significant Pakistan land access to the Upper Kurram Agency where Parachinar is the district capital, provides a distinct example of the difficulty of the region. Closed by militants for over four years since 2007, peace talks providing for the re-opening of the road in 2011, followed by splinter extremist groups disavowing the peace accords and conducting violent attacks on road conveys.
[48] The actual violent acts conducted may be random and sporadic, these attacks are designed to keep the people of Parachinar and the Upper Kurram region on high alert and extremely anxious about the possibility of a violent incident that will cause significant loss of life. It is a different circumstance to the incidents of violence in Quetta City, where there is a constant threat of actualised violence, but the possibility of violent attack on civilian targets in and around Parachinar remains a realistic threat that may be carried out and may harm individuals such as the applicant.
At [51] the Tribunal found:
[51] Based on this information, the Tribunal accepts that the applicant has a real chance of serious harm arising from his ethnicity and religion in the Kurram Agency. The Tribunal considers that in the context of someone from that region of Pakistan, being a Shia will almost automatically ascribed you to being an ethic Bangash or Turi Tribe member. While there is limited information that people are targeted specifically because of their ethnicity, the combination of the applicant’s background as a Shia Bangash or Turi from this region places the applicant is [sic] at risk of harm. The Tribunal considers that there is a significant amount of country information about the Kurram Agency in Pakistan which supported the contention that the applicant could not return to that part of Pakistan.
The Tribunal then considered whether the applicant could relocate and articulated the test at [54 -55] thus:
[54] Having determined that the applicant does have genuine fears of returning 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 form a habitual residence to a region where, objectively, there is no appreciable risk of the occurrence of the fear persecution. Thus a person would 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. However, whether relocation is reasonable is not to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, Political and socio-economic rights.
[55] The issue of whether it would be reasonable to expect an applicant to relocate within Pakistan only arises if the circumstances indicate that there is a region where, objectively, there is no appreciable risk of the occurrence of the fear persecution, that is, where the feared persecution is localised rather than nation-wide. Generally speaking, it is not necessary to identify a specific place in which the applicant can relocate or live.
The Tribunal considered relocation to Rawalpindi, where the applicant had previously lived. The Tribunal made a finding of fact open to it on the evidence that it did not accept that the applicant has been targeted for harm personally in Rawalpindi or that he had there been required to modify his behaviour or act in any manner to reduce his profile in Rawalpindi during his time there. [56].
At [69-74] the Tribunal considered the second limb of the “relocation test” as to whether it would be reasonable, in all of the circumstances, for the applicant to relocate to Rawalpindi. Given that this issue is a focus of the application before me, I have set out the Tribunal’s reasons in full as follows:
[69] Having determined that the applicant can relocate to a location where he does not face a real chance of serious harm, the Tribunal has considered whether it is reasonable in all the circumstances for the applicant to relocate to Rawalpindi.
[70] The Tribunal considers that the applicant has a relevant and extended history of living in Rawalpindi. He has connections and has worked for a Rawalpindi company, firstly as a labourer and then as a technician. These skills learnt, and the ability to leverage his connections for the purpose of gaining employment, provides the applicant with the ability to establish himself and his family in Rawalpindi. While the applicant has previously lived by himself in Rawalpindi, gaining finances to support his family, given the capacity for the applicant to earn money in Rawalpindi, he would be in a position to support his family living in Rawalpindi themselves. The applicant has also shown that he is willing to leave the family support of the home in Parachinar to establish himself in Rawalpindi.
[71] The Tribunal has also considered the effect of generalised violence in Pakistan in the context of the reasonableness of the applicant relocating within Pakistan. Generalised violence in Pakistan occurs sporadically in a number of locations, and the Tribunal does not accept that the applicant is specifically targeted by this general violence. The Tribunal considers that the prospect of the applicant being harmed in an incident of generalised violence within Pakistan to be one that is remote.
[72] The applicant has shown an aptitude, in his living for an extended period in locations in Pakistan outside of his home region, and the Tribunal considers that he could reasonably establish himself in another location within Pakistan. The Tribunal considers that it is reasonable, in the sense of being practicable, for the applicant to relocate having regard to all of the circumstances.
[73] The Tribunal finds that the applicant can continue to be a practising Shia Muslim, a Bangash/Turi Tribe member, a Pashtun and a Shia Bangash/Turi from the Parachinar Region of the Kurram Agency in areas of Pakistan where he does not have a real chance of serious harm. The Tribunal finds that there are locations in Pakistan where he will not face a real chance of serious harm.
[74] Having considered the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that the applicant faces a real chance of serious harm within the entirety of Pakistan now or in the reasonably foreseeable future. The Tribunal finds that the applicant is in a position to relocate to Rawalpindi, a location where he would not face a real chance of serious harm because of his Shia Bangash Pashtun and Parachinar background.
Application to this Court
Counsel for both the applicant and the first respondent noted that the first three grounds of complaint are inherently connected and overlap and could be effectively argued together. Essentially, the applicant argues that the Tribunal did not consider his claim as to facing harm in travelling between Rawalpindi and Kurram Agency to visit his family if he were to relocate to Rawalpindi.
Ground 4 of the complaint also overlaps to a degree with the first three grounds but specifically argues that the Tribunal did not consider the practical realities of the proposed relocation to Rawalpindi in considering whether it was reasonable for the applicant to so relocate.
Grounds 1-3
The applicant says that the Tribunal did not consider his claim as a component integer that he feared persecution or significant harm when travelling on roads between Rawalpindi and Kurram Agency.
The first respondent says that the applicant misconceives the nature of the Tribunal’s findings in respect of the Applicant’s claims in that the alleged danger on the roads was not an independent claim requiring the consideration of the Tribunal. That is, that the Applicant’s initial interview discloses only a general comment rather than a specific claim of fear of harm on the roads around Parachinar. Similarly, that the applicant’s Irregular Maritime Arrival Entry Interview discloses only vague references of very general threats on the roads not amounting to a claim or integer of a claim. Still further, the respondent argues that the Applicant, in any event, claimed only to travel back to Parachinar once per year from 2007 in both his statutory declaration and in his written submissions to the Tribunal.
Alternatively, the first respondent argues that in any event, the Tribunal acknowledged the applicant’s previous travel between Rawalpindi and Parachinar [38] and that the subsequent findings that the applicant would face harm in Parachinar presumably included a consideration of the harm faced by him in travel on the roads around that region.
Counsel for the first respondent says that the Tribunal did not fail to ask itself the right question in relation to relocation. Counsel argues that the Tribunal correctly applied the test and considered all relevant issues in establishing whether it be reasonable for the applicant to relocate and specifically that no evidence was put before the Tribunal regarding the applicant travelling to Rawalpindi from Australia (ground 2(b)) and that harm to him might occur.
Ground 4.
In respect of ground 4, the first respondent says that the Tribunal did consider the practical realities of the applicant’s proposed relocation. In his written submissions at [21] the first respondent puts this argument succinctly as follows:
Rather, in this case, the Tribunal incorporated its detailed findings on the applicant’s experience in Rawalpindi in relation to harm [36-42] and [66-68], and then reinterpreted that information in regards to the practical realities of relocation.
Generally, the first respondent relied on the authority that the Tribunal’s decision should be read as a whole and without an eye attuned for error.[1]
[1] Minister for Immigration and Ethic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [271-2]
Consideration of the application
In Htun v Minister for Immigration and Multicultural Affairs[2] Allsop J said:
The requirement to review the decision under S414 of the Act requires the Tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked upon. The claim or claims and it’s or their component integers are considerations made mandatory relevant by the Act for consideration ...
[2] Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802
Further, in Dranichnikov v Minister for Immigration and Multicultural Affairs[3] Kirby J at [87-88] notes:
[87] The Court has repeatedly held that, for the issue of prohibition or mandamus, under s.75(v) of the Constitution, it is necessary to demonstrate jurisdictional error on the part of the proposed subject of such relief. Thus, it is essential to establish something more than an error of law within jurisdictions. Difficult as it may sometimes be to differentiate jurisdictional and non-jurisdictional error with exactitude, in a case where there has been a fundamental mistake at the threshold in expressing, and therefore considering, the legal claim propounded by an applicant, the error will be classified as an error of jurisdiction. It will be treated as a constructive failure of the decision-maker to exercise the jurisdiction and powers given to it.
[88] Obviously, it is not every mistake in understanding the facts, in applying the law or in reasoning to a conclusion that will amount to a constructive failure to exercise jurisdiction. But where, as here, the mistake is essentially definitional, and amounts to a basic misunderstanding of the case brought by an applicant, the resulting flaw is so serious as to undermine the lawfulness of the decision in question in a fundamental way.
[3] Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 2003
The obligation to consider claims includes those that are;[4]
(a) expressly raised;
(b) squarely raised by the material before it; and
(c) those that are evident from the Tribunal’s own findings and conclusions.
[4] MZWDG v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 427at [39]
Secondly, I accept the submissions of Counsel for the applicant that the Tribunal must do more than simply state, set out, or acknowledge the applicant’s claim. It must consciously consider and engage with that claim.[5]
[5] Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114.
Consequently, at its most abstract, I am to consider whether the applicant set out a claim or integer of a claim such that the Tribunal was obliged to consider and engage with the claim? Secondly, and if such a claim is evident, did the Tribunal engage with the claim?
On a consideration of the material before the Tribunal, I am persuaded that the applicant in the matter now before me did set out a claim of fearing harm or persecution by travelling on the roads around Parachinar. In his first interview it is recorded:
A lot of danger from Taliban and snipers and bomb blasts. Also IGDs in the roads.
Secondly, in his Irregular Maritime Arrival Entry Interview at part C there is recording in a question and answer format:
…people were getting off trucks on the way to Peshawar and Parachinar and suicide attacks happening on our people. Sniper shootings and mostly killing our people…the other thing is that moving around in our area, going to different places from our area is very difficult and dangerous for our lives.
Similarly, in his statutory declaration of 14 November 2012 at [6] and [8-9] the applicant says:
[6] I would travel back to my home to visit my family about once every two or three months and would stay with them in the Kurram Agency for about two weeks at a time. I missed my family and my community very much and never enjoyed living away from them. However, knowing that the risks I was taking provided my family was my main propriety.
[8] In April 2007, a war broke out in the Kurram Agency. The roads between Parachinar and Peshawar were blocked by the Taliban and the only way to travel on them was with government escorts. However, even the government convoys were regular attacks and Shias were murdered. This situation caused me much grief. I was stranded in Rawalpindi and unable to travel back to my home to visit my family.
[9] Between 2007 and 2012, I would only travel back to the Kurram Agency about once a year. On each of those occasions, I was terrified. I only travelled along these roads for the purposes of seeing my wife and child who I missed dearly.
Also in his written submissions to the Tribunal the applicant says at [22-24]:
[22] In or around April 2007 the present bout of sectarian violence in the Kurram Agency commenced between Shia and Sunni extremist groups. As a result, the roads leading in and out of Peshawar became increasingly dangerous due to the presence of Taliban. Though armed government convoys were available, these convoys were regularly attacked and Shias on board were killed.
[23] The applicant is easily identified as a Shia because: (a) of his surname of (X)(also the name of Y, a descent of the Prophet Muhammad, who was killed at Kabala in Iraq 1123 years ago, and was thus denied the leadership of Muslims that Shias believe was his right); (b) of his strict observance of Shia Islam including wearing black clothing the month Muharram and attending Shia mosques; and (c) because his identity documentation (for example his domicile certificate) refers to him as a Bangash (Shia Muslim).
[24] Owing to the fear of harm during these journeys, the applicant reduced the frequency of his return to Kurram Agency to approximately once a year. On these occasions the applicant risked his life compelled only because of his love for his family and children, who he missed dearly.
Interconnected is the applicant’s claim that he could not reasonably relocate his family to Rawalpindi and that he would intend, if this be the case, to travel frequently to maintain those relationships.
There is, therefore, in my view, a claim clearly articulated by the applicant or at least one implicit in and flowing from the Tribunal’s determination that the applicant relocate to Rawalpindi. Further, the Tribunal itself in its reasons and as set out above has found that the applicant could not return to Kurram Agency to live because of a fear of persecution or significant harm. The claim, therefore, that the applicant would be likely to travel back to Kurram Agency from Rawalpindi and therefore be subject to significant harm is one that could obviously be rejected by the Tribunal in its discretion in attributing weight to and balancing of the evidence. This, however, is not the issue before me. Rather, this applicant argues simply that there was a claim that he would face significant harm in travelling to or from Kurram Agency and that the claim has not been considered.
At [70] the Tribunal in its reasons deals with the prospects of the applicant relocating his family to Rawalpindi or alternatively the applicant supporting his family from Rawalpindi whilst they remain in Kurram Agency. Whilst these are matters properly within the Tribunal’s consideration, they do not, in my view, subsume the obligation of the Tribunal to consider and engage the claim made by the applicant in respect of travel between Rawalpindi and Kurram Agency. This is a separate and distinct claim made by the applicant and particularised as above. Again, it is open for the Tribunal to reject that claim in all of the circumstances but only after engagement and consideration. Put simply, the Tribunal was confronted with a claim giving it an obligation to consider the reasonableness of the applicant relocating to Rawalpindi in circumstances where he says he would travel outside of that city. The Tribunal’s reasons do not, in my view, disclose that the claim was engaged and considered. As such, I am of the view that the Tribunal fell into jurisdictional error.
Consideration of ground 4
The applicant complains that the Tribunal failed to consider the practical realities of the proposed relocation in the context of whether it would be reasonable for this applicant to relocate to Rawalpindi.
It is well established that the reasonableness of a finding that an applicant can relocate includes a consideration of the particular circumstances of the applicant in the sense of whether such relocation would be a practicable option.[6]
[6] Randhawa v MILGEA (1994) 52 FCR 437 at [442].
The applicant here argues that the Tribunal’s consideration of his circumstances were limited to the question of whether he would suffer persecution of significant harm and not to matters of practical reality.
I am not persuaded by the applicant’s argument here. At [69] of its reasons the Tribunal says:
Having determined that the applicant can relocate to a location where he does not face a real chance of serious harm, the Tribunal has considered whether it is reasonable in all the circumstances for the applicant to relocate to Rawalpindi.
Immediately thereafter the Tribunal considers the particular circumstances of the applicant thus [70]:
The Tribunal considers that the applicant has a relevant and extended history of living in Rawalpindi. He has connections and has worked for a Rawalpindi company, first as a labourer and then as a technician. These skills learned, and the ability to leverage his connections for the purpose of gaining employment, provides the applicant with the ability to establish himself and his family in Rawalpindi. While the applicant has previously lived by himself in Rawalpindi, gaining finances to support his family, given the capacity for the applicant to earn money in Rawalpindi he would be in a position to support his family living in Rawalpindi themselves. The applicant has also shown that he is willing to leave the family support of the home in Parachinar to establish himself in Rawalpindi.
At [72] the consideration continues in respect of reasonableness and practicality as follows:
The applicant has shown an aptitude, in this living for an extended period in locations in Pakistan outside of his home region, and the Tribunal considers that he could reasonably establish himself in another location within Pakistan. The Tribunal considers that it is reasonable, in the sense of being practicable, for the applicant to relocate having regard to all of the circumstances.
I am of the view, therefore, that the Tribunal did specifically consider the practicalities of the applicant’s relocation in respect of reasonableness, although separately it did not engage his claim in respect of proposed travel to Kurram Agency.
Conclusion
Having been satisfied that the Tribunal fell into error in not engaging and considering a claim made by the applicant, the applicant should be afforded the relief sought.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge McGuire
Date: 29 October 2015
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