MZAES v Minister for Immigration - [2015] FCCA 307

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAES v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 307

Catchwords:
MIGRATION – Judicial review of a decision of the Refugee Review Tribunal – consideration as to whether the Tribunal took into account irrelevant considerations or failed to take into account relevant considerations – application dismissed.

Legislation:

Migration Act 1958 (Cth)

MZYXP v Minister for Immigration and Border Protection [2013] FCA 1352
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] 52 FCR 437

Applicant:

MZAES

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 956 of 2014

Judgment of:

Judge McGuire

Hearing date:

11 February 2015

Date of Last Submission:

11 February 2015

Delivered at:

Melbourne

Delivered on:

25 March 2015

REPRESENTATION

Solicitors for the Applicant:

Counsel for the Applicant:

Sabelberg Morcos Lawyers

Mr Sabelberg

Solicitor Advocate for the Respondents:

Ms Lucas

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application for judicial review filed 28 May 2014 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 956 of 2014

MZAES

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) made 24 April 2014 affirming the determination of the Minister’s Delegate not to grant the applicant a protection (class XA) visa (“the visa”).
The application was filed on 28 May 2014 with an amended application filed 3 February 2015 together with written submissions.
The Applicant was represented by a solicitor advocate at the hearing before me.
The application sets out two broad grounds of complaint being:
in making the Decision, the Refugee Review Tribunal acted without jurisdiction or in excess of jurisdiction, in that it: (a) failed to take into account relevant considerations and; (b) took into account irrelevant considerations:
Particulars:
(a) the Refugee Review Tribunal and the first respondent failed to       take into account relevant considerations, namely:
(i) the applicant risked being persecuted upon his return to Pakistan by reason of ethnocentricity, adherence to Western values, membership of a political party (ANP) and his opposition to the Taliban;
(ii) the applicant would suffer a threat to personal security if forced to return to Pakistan and that the applicant had a fear and apprehension of persecution;
(iii) the applicant would be subject to other risks in Pakistan;
(iv) the situation in Lahore, the suggested city of relocation and the difficulties the applicant would suffer in Lahore;
v) the second defendant denied the applicant procedural     fairness by not putting forward particulars of the specific independent country information; and
vi) in denying the applicant procedural fairness, the second     respondent unreasonably failed to consider the applicant’s claims cumulatively.
b) the Refugee Review Tribunal and the first respondent took irrelevant considerations into account, namely:
(i) that the second defendant primarily focused upon the ethnic component of Lahore and failed to take into account, the linguistic and political differences between Pashtuns from Lahore and persons from the particular sub-group of the Afrida Tribe that the applicant belonged to. The Applicant’s mental health and practical difficulties are set out in the submission found herein.
The Applicant’s advocate provided helpful oral submissions further to the written submissions.
The application is opposed by the first Respondent who also provided assistance by way of written and oral submissions.

Background

The Applicant is a citizen of Pakistan. His material indicates that he is a member of the Afrida Tribe. His ethnicity is Pashtun. He is a member of the Sunni Mushin Sufi Sect. His tribal area or home region is Bara Khyber Agency which is allegedly subject to Taliban influence.
The Applicant entered Australia on 24 July 2012 on a student visa. On 6 December 2012 he applied for a protection visa.
The Applicant has provided an extremely lengthy statement as to his background and that is transcribed into the Tribunal’s reasons at [19]. A further and apparent written submission is also transcribed in the Tribunal’s reasons at [22].
The Applicant appeared before the Tribunal on 4 December 2013 and later submissions were accepted. Further, a psychologist report in respect of the Applicant was also later received by the Tribunal and its contents are set out at [27] of the Tribunal’s reasons.

Relevant Legal Principles

Section 36(2) of the Migration Act1958 (“the Act”) provides the criteria for protection visas together with Part 866 of Schedule 2 to the Migration Regulations 1994 (“the Regulations”). Australia is a signatory to the 1951 Convention relating to the status of refugees and amended by the 1967 protocol. Section 91R of the Act provides that an Applicant must demonstrate fear of persecution involving serious harm or systematic and discriminatory conduct. Fear of persecution can be shown whether as an individual or as a member of a group. The persecution must be for reasons of a race, religion, nationality, membership of a particular social group or political opinion. The Applicant’s fear of persecution must be well-founded which may be established if the Applicant shows a genuine fear based on “real chance” of being persecuted for a relevant reason.
If such a real fear of persecution is prima facie demonstrated then the Applicant must show inability or unwillingness (because of fear) to avail himself of country protection. Alternatively, an Applicant for a protection visa may argue complementary protection considerations of a risk of suffering significant harm as defined in the Act at Sections 36(2A)(a) – (e). Nevertheless, real risk will not be satisfied if an Applicant could reasonably relocate to another area of the relevant country where the risk factors do not prevail or protection is available.

The Tribunal’s Decision

Whilst not accepting all of the Applicant’s factual assertions in making findings of credit against him, the Tribunal made the following findings:
(i) the Tribunal finds that in the applicant’s circumstances, it is reasonable to conclude that the applicant faces a real chance of serious harm in his home location in Pakistan. [83];
(ii) the Tribunal finds that there is a real chance that the applicant will be seriously harmed by extremist organisations, such as the LEI or Tehrik-e-Taleban, who are seeking to harm individuals from the Khyber Pakhtunkhaa region of Pakistan, due to the extremist organisation’s interest in destabilising this region generally. The tribunal finds that there is a well-founded fear of persecution for the applicant should he return to Khyber Pakhtunkhaa Province, Peshawar, or the nearby areas of FATA, Hangu, or Baluchistan. [84]; and
(iii) the Tribunal finds that there is a real chance that the applicant would face serious harm now or in the reasonably foreseeable future if he was to return to Khyber Pakhtunkhaa or FATA or Balcuhistan for the Convention reason of political opinion, arising from is imputer political opinion supportive of the ANP, the opinion of his tribe that would be imputed to anti-extremist in nature.
Given these findings favourable to the Applicant’s argument focus fell on the Tribunal’s findings at [112-114] as follows:
[112] The tribunal finds that it is reasonable, in the sense of practicable, for the applicant to relocate to an area outside of his home area in Pakistan where he does not face the real chance or real risk of serious or significant harm.
[113] 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. The tribunal finds that the applicant will be able to reasonably relocate within Pakistan to a location where he would not face a real chance of serious harm to a Convention reason.
[114] Having determined that the applicant could reasonably relocate to areas of Pakistan other than his home area, the Tribunal does not consider that the applicant has a well-founded fear of persecution for a Convention reason now or in the reasonably foreseeable future.
And whilst the focus of submissions was on the ability of the Applicant to relocate, the Applicant’s counsel argued that the Tribunal failed to take into account relevant considerations and/or took into account irrelevant considerations. That argument is particularised at paragraph 9 of the Applicant’s written submissions and elaborated in oral submissions as follows:
9) It is submitted that the Tribunal failed to consider factual information available to the member in respect of the applicant’s tribal and linguistic situation which is unreasonable to expect him to relocate to Lahore.
a) the applicant is a Pashtun from a tribal area outside Pakistan. He is instantly recognisable from his facial features which are different to those of most Pakistani’s.
b) His national identity card, which is required to be shown on demand in dealing with government agencies, in obtaining employment or housing, identifies his place of birth as Bara Khyber Agency. He believes that would invite discrimination, as the average Pakistani thinks that area is a place of terrorists.
c) As noted by the Tribunal, he is a member of a tribal sub-group of the Afrida Tribe. He speaks a dialect of Pashtun (one of many) that is not spoken by most Pashtuns from Pakistan. He does not speak the main language of the Punjab area of which Lahore is the centre.
d) The Tribunal in paragraph 109 of the decision referred to the applicant’s mental health conditions and stated that there are mental health facilities in Lahore from which he could access treatments. However, it failed to consider the isolation the applicant would face in Lahore, especially as there are no members of the applicants [sic] tribe in the city to provide him with a network and protection.
e) The Taliban have a presence in Lahore and material readily available on the internet confirms this. The army has targeted the Taliban in the tribal areas, they have vowed to take the fight to the prime minister’s electoral – of the Punjab’s [sic] of Lahore in the capital.
f) The Pashtun people are supporters of the Taliban and his presence as an opponent of the Taliban would invite conflict with Lahore Pashtuns.
At [88] of its reasons the Tribunal stated:
The Tribunal discussed with the applicant the prospect of relocating to another location in Pakistan where he would not face persecution. The applicant’s claims arise primarily on the political opinion that he was as a general member of the PSF and the family’s involvement with the ANP.
The applicant’s involvement in politics has been limited to his involvement in the PSF when he was a student. The applicant has not had any significant responsibility in the PSF, he provided some very limited information that he had been active while at college, and then stated and provided evidence that he had become a member in March 2012, shortly before he came to Australia in July 2012. The Tribunal has found above that the applicant’s involvement in the PSF was limited and not high profile. His documents regarding membership state that he was a member for only four months at the university, and the Tribunal has found that any previous activity was very limited. The Tribunal does not accept that the applicant’s involvement in the PSF would lead to be a risk of harm across Pakistan, knowledge of this activity would be very limited and would not lead to the applicant being sought for harm across Pakistan due to his actual involvement with this group.
There is a general tendency in the submissions put on behalf of the Applicant suggesting that the Tribunal referenced Lahore as the place of relocation. My reading of the Tribunal’s decision suggests a more general geographical investigation. At [86] the Tribunal says:
Having determined that the applicant does not have genuine fears of a return to his home region, the Tribunal is required to consider whether the applicant could reasonably relocate to a separate part of Pakistan. Depending upon the circumstances of the particular case, it may be reasonable for a person to relocate in the country of nationality or former habitual residence to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. 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. However, whether relocation is reasonable or 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.
And at [88]:
The Tribunal discussed with the applicant the prospect of relocating to another location in Pakistan where he would not face persecution.
Further at [91] the Tribunal notes:
The applicant has stated that being an ANP member or supporter places him at risk across Pakistan. Nowhere was safe in Pakistan, the applicant used the example of the MQM and ANP disputes in Karachi as evidence of this difficulty. However, it is not evident that ANP members are being harmed or are at risk of harm across Pakistan.
At [92] the Tribunal references country information in respect of the ethnic Pashtuns in Lahore. However, I am comfortably satisfied that the consideration of the Applicant’s relocation by the Tribunal was not limited to Lahore. At [87] the Tribunal confirms its breadth of consideration in this regard as:
Generally speaking, it is not necessary to identify a specific place in which an applicant can relocate or live (SZQBC [2011] FMCA 563).
It is clear on any reading of the Tribunal’s reasons, and not seriously challenged by the Applicant, that the Tribunal approached its task correctly by asking itself two distinct questions being:
i)Whether the Applicant had a well-founded fear of persecution in another part of Pakistan outside of the Applicant’s home region; and
ii)Whether it would, in any event, be reasonable for the Applicant to relocate to another part of Pakistan.
I turn to consider the Applicant’s particular complaints that the Tribunal failed to take into account relevant material.
The Applicant claims that he is recognisable from his facial features and that relocation within Pakistan would consequently cause him reasonable and foreseeable fear of serious harm. There is, however, no assertion or evidence before me that this issue was, in fact, raised in either written or oral submissions before the Tribunal. My jurisdiction being, in respect of establishing an error at law, that it is not open to the Applicant to give or adduce new material on judicial review. As Black CJ observed in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs[1]
If the appellant had raised other impediments to relocation the decision maker would have needed to consider these but having regard to the issues raised by the appellant and to the material that was before the decision maker on the issue of relocation she was entitled to come to the conclusion that the appellant could reasonably be expected to relocated elsewhere in India.
[1] [1994] 52 FCR 437
In any event, at [98] the Tribunal specifically did not accept that the Taliban would seek to harm the Applicant across Pakistan due to his family’s previous running of a pharmacy business, his brother’s previous employment, or his uncle’s work on a FM radio station. Further the Tribunal did not accept that the Taliban would seek to harm the Applicant anywhere in Pakistan due to any claimed involvement with providing bodyguard services for an Iman when he was 15 years old. It did not accept that the Applicant would be sought by the Taliban for any activity arising out of AUL and LEI dispute in his home region, given that the Applicant was not an active combatant in the disputes. The Tribunal did not accept that the Taliban would seek out the Applicant because of his tribal associations or political affiliations. It seems, therefore, that any argument as to the Applicant being identified in other areas of Pakistan is subsumed in these findings.
Secondly the Applicant argues that his national identity card would identify him at other Pakistani locations and would invite discrimination against him by Pakistanis believing that he is from a place of terrorists. This assertion was raised before the Tribunal and at [106] it was specifically not accepted. The Tribunal’s reasons show a conscious consideration of this claim. The finding is one that was open to the Tribunal.
Thirdly the Applicant says that he is a member of the Afrida tribal sub-group and speaks a dialect that is not spoken by the majority of Pakistan Pashtuns. Again the inference is that it would identify the Applicant outside of his home region. This assertion was put as new material before this court and not argued before the Tribunal. As Kenny J observed in MZYXP v Minister for Immigration and Border Protection [2013] FCA 1352:
Black CJ’s approach continues to be an accepted statement of the law in this area. The Tribunal’s consideration of relocation in this case had to be referable to the case that the appellant made with respect to relocation or “the framework set by these[appellant’s] particular objections…to relocation”; see SZNCD v Minister for Immigration and Citizenship (2009) 174 FCR 415 (“SZMCD”) at 439 [124] (Tracey and Foster JJ).
In relation to relocation it was not correct to say, as the appellant did, that the Tribunal’s inquiry was as to the “objective impact of the possible relocation” on him. Rather, the inquiry, though objective, was circumscribed by the case made by the Applicant with respect to the relocation issue.
Fourthly the Applicant argues that the Tribunal failed to consider the isolation that the applicant would face in Lahore especially as there are no members of the Applicant’s tribe in the city to provide him with a network of protection. The issue of the Applicant’s mental health was clearly before the Tribunal and consciously considered at [111]. Further at [108] the Tribunal directly considers this issue as follows:
The applicant does not have any immediate family who are dependent upon him. The applicant has stated, in his evidence, in submissions and in the medical report that is included, that his family are very important to him, and that they have moved away from certain locations. The Tribunal considers that on return to Pakistan, in locations away from the area where the applicant is at risk of being harmed, the applicant has the ability to reunite with his family and not be at risk of harm. This would assist the applicant deal [sic] with some of his health issues that arise from his concern from his family.
In respect to mental health issues the tribunal also says at [109] and [110]
The Tribunal has considered the report of the psychologist and the applicant’s present mental health issues. At the hearing the Tribunal noted that there was information about his mental health, and that it would take that into account when considering his evidence, including giving the applicant the opportunity to take breaks when required. It is clear that the applicant is unwell and has been assisted by access to medical services. The Tribunal discussed some country information regarding the provision of health services for mental illnesses, and noted that is not as available in locations such as Australia. There are far fewer psychologists and psychiatrists present in the country; though they are more prevalent in larger urban centres. There are newly opened and expanded facilities in locations such as Rawalpindi and Lahore, including residential care, though there is nothing that states that the applicant requires that level of assistance.
Medication is available for mental health issues in Pakistan. Mirtazapine is the generic name of an antidepressant used in the treatment of depression and post-traumatic stress disorder(PTSD). In Pakistan, Mirtazapine is sold under the brand names Mirtazep, Remeron, Soltab and Ramargon. A number of manufacturers produce and sell Mirtazapine in Pakistan, including Lisko and OBS Healthcare (a division of Merck). Pharmaceuticals produced by OBS Healthcare are distributed in all major metropolitan areas of Pakistan. Generic Mirtazapine is not expensive in Pakistan. According to the OBS Healthcare Pakistan website, a 1x10’s blister pack of Remeron (Mirtazapine) in 30mg tabs is priced at 452.40 rupees. According to OnlinePharmacy.pk, 15 mgs Mirtazep (Mirtazapine) retails for 392 rupees. Some institutions, including the Punjab Institute of Mental Health Lahore, provide medicines free of charge to patients, including Mirtazapine.

I am satisfied that the Tribunal has addressed the issue of the Applicant’s family relationship/isolation/mental health and made findings which were open to it.
Fifthly the Applicant argues that the Taliban have a presence in Lahore, supported by material available on the internet, with the implication that there is a real chance that the Applicant will be seriously harmed. Again, the Tribunal’s determination in respect of relocation was not limited to Lahore. The Tribunal made specific findings in respect of the Applicant being able to relocate to other areas of Pakistan without facing a real chance of serious harm. The Applicant’s consideration was not limited to Lahore. Specifically at [92]. The Tribunal said:
According to the Find.Pk website, there are thought to be over one million ethnic Pashtuns in Lahore, or approximately 15 per cent of the population. The Awami National Party (ANP) has a Punjab branch. Photos posted on the ANP website indicate that the party has recently held both peace rallies and a Bacha Khan conference in Lahore. No sources were located that indicate that either of these events were targeted by violent extremists.
The Applicant is again attempting to introduce new material and, in fact, un-particularised material. It is not the role of this court to accept this new material and conduct yet another hearing on the merits.
Finally, and sixthly, the Applicant says that the Pashtun people are supporters of the Taliban and his presence as an opponent of the Taliban would invite conflict with Lahore Pashtuns. This constitutes a new argument not put specifically before the Tribunal. In any event, the argument is also addressed by the findings of the Tribunal at [92] above and subsumed within the other particularised arguments considered above.
I find no merit in ground one of the amended application and identify no jurisdictional error in the Tribunal by reason of failing to take into account relevant considerations.
Secondly, the Applicant argues that the Tribunal took into account irrelevant consideration, namely that it “focused upon the ethnic component of Lahore and failed to take into account the linguistic and political differences between Pashtuns from Lahore and persons from the particular sub-group of the Afridi Tribe that the Applicant belonged to. The Applicant’s claims as to mental health and more pragmatic difficulties are set out in the submission found herein.”
As mentioned above, the Tribunal consciously considered and referenced the material in respect of the Applicant’s mental health.
I do not accept that the Tribunal “focused upon the ethnic component of Lahore” and clearly considered relocation across Pakistan and not limited to Lahore.
Issues raised now in respect of “linguistic and political differences” have been dealt with and disposed of above.
I find no merit in ground two of the application.

Conclusion

There being no merit to either ground of the application, that application will be dismissed.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date: 25 March 2015