MZAGN v Minister for Immigration
[2018] FCCA 1996
•26 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZAGN v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1996 |
| Catchwords: MIGRATION – Protection visa – application for judicial review of decision of Administrative Appeals Tribunal – claim to fear harm due to political association – where Tribunal rejected primary claim of risk to applicant of harm by reason of high political profile – whether Tribunal failed to consider subsidiary claim of risk to applicant of collateral harm by reason of association with persons of higher political profile – identification of the correct legal test on internal relocation – location of an objection to relocation within the framework for an evaluation of internal relocation – applicant to be afforded opportunity to furnish the material to the Tribunal supporting objection to relocation – Tribunal to be satisfied whether applicant meets the elements required to satisfy Convention definition of refugee – whether Tribunal failed to apply relocation test – no error in the decision of the Tribunal demonstrated – application dismissed. |
| Legislation: Freedom of Information Act 1982 (Cth) Migration Act 1958 (Cth), ss. 65, 414, 438, 476 Migration Regulations 1994, Sch.2, cl. 866.221 |
| Cases cited: AHK16 v Minister for Immigration and Border Protection [2018] FCAFC 106 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 BHB16 v Minister for Immigration and Border Protection [2018] FCAFC 42 CRI026 v The Republic of Nauru [2018] HCA 19 CRI028 v The Republic of Nauru [2018] HCA 24 CSO15 v Minister for Immigration and Border Protection [2018] FCAFC 14 Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317 Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 Minister for Immigration and Ethnic Affairs and Citizenship v Wu Shan Liang (1996) 185 CLR 259 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Randhawa v MILGEA (1994) 52 FCR 437 |
| Applicant: | MZAGN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 592 of 2016 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 30 May 2017 |
| Date of Last Submission: | 30 May 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 26 July 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Aleksov |
| Solicitors for the Applicant: | Carina Ford Immigration Lawyers |
| Counsel for the Respondents: | Mr Yuile |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The application be dismissed
The Applicant pay the costs of the First Respondent fixed at $7,206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 592 of 2016
| MZAGN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an amended application filed on 2 May 2017, judicial review is sought of a decision of the Administrative Appeals Tribunal (Tribunal) made on 24 February 2016, affirming a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (Act).
The applicant, a male Pakistani national aged 39 years, first came to Australia as a maritime arrival. He had been a crew member on a vessel which arrived in Fremantle on 10 June 2012 that he deserted on 14 June 2012, remaining in Australia unlawfully thereafter until 9 July 2012.
This judgment provides the reasons for my conclusion that the application should be dismissed. This is the fifth occasion on which the application has been considered.
Background
The applicant completed an application for a Protection (Class XA) visa on 30 June 2012 which was lodged on 9 July 2012.
The applicant attached a typed statement to his visa application in which he articulated the basis on which he claimed protection. The applicant claimed that he was one of seven siblings and that his father and uncles were politically active, one being a member of the provincial Parliament in Dherai Swat Valley, Pakistan. They were, he said, well known as supporters of the largest political party in Pakistan, the Awami National Party (ANP).
The applicant stated that his father’s cousin, Dr Shamsher Ali, had been assassinated by extremists in December 2009. He further stated that the death of Dr Ali resulted in a bye-election that Dr Ali’s younger brother, Rahmat Ali, had won. He stated that his entire family was passionate about politics and that he had shared that passion since a young age, being an active member of ANP and having supported campaigns for the 1997, 2002 and 2010 elections. The applicant also stated that his family had enmity with a rival family in Dherai Swat which had resulted in bloodshed on both sides. He said that the rival family was wealthy and powerful and had joined an organisation opposed to the views held by his own family and sought to exact revenge upon his family.
The applicant further stated that after his father and others had formed a peace committee against the Taliban, his family had been harassed and threatened by the Taliban including that: (1) his father had rebuffed their demands that he cease supporting the ANP; (2) he had been kidnapped but escaped after being detained for a month; (3) one of his brothers had fled to the United States; (4) a cousin had been threatened; (5) an uncle had been kidnapped and later killed; (6) in December 2009, Dr Ali had been killed in the applicant’s presence; (7) in October 2010, his family’s house had been attacked and after they had returned fire, set alight; (8) in August 2011, a brother had been killed after the father had rebuffed a demand to cease his support of ANP.
In June 2012, the applicant had the joined the vessel upon which he had sailed to Australia and from which he had deserted.
The applicant expanded upon his claims to fear harm from persecution in a statement dated 9 December 2015.
In the period August – September 2012 the applicant’s lawyers assisted him in relation to inquiries from the Department of Immigration and Citizenship, including in relation to arranging an interview, supplying various documents and translations of other documents.
A delegate of the Minister refused the application on 19 October 2012, doing so on the basis that the applicant did not satisfy the criteria in cl. 866.221 of Sch 2 of the Migration Regulations 1994. The delegate accepted that the harm feared by the applicant would constitute serious, systematic and discriminatory conduct such as to amount to persecution. However, the delegate found the applicant’s statements respecting his claims to be vague and inconsistent and was not satisfied that he was a member of, or was involved in the political activities of, the ANP as claimed. Concerning the applicant’s family profile, the delegate found that there was no convincing evidence that the applicant or his immediate family held a high-profile in the Dherai Swat area and was not satisfied the family had been specifically targeted for harm due to a particular profile. Instead, the delegate found that the applicant’s family had been the subject of more generalised violence. The delegate also rejected that the applicant’s claimed kidnapping had occurred and, in light of a number of credibility concerns in relation to the applicant, did not accept that he had a profile in Dherai Swat that would set him apart from the rest of the population. The delegate speculated that if the applicant had held the profile which he claimed, the Taliban would more likely have killed him as a result of the claimed kidnapping. The delegate concluded that it was not satisfied the applicant was owed protection obligations by Australia.
On 5 November 2012, the applicant’s lawyers lodged an application for a merits review of the delegate’s decision with the then Refugee Review Tribunal and provided a copy of that decision with the application.
On 26 April 2013, the Tribunal invited the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the delegate’s decision under review.
On 30 May 2013, the applicant’s lawyers filed a detailed submission together with a range of supporting documents including country information and translations of a variety of local media reports.
On 29 May 2014, a Tribunal affirmed the decision to refuse the protection visa application.
On 25 June 2014, the applicant applied for judicial review of the Tribunal’s decision. On 27 August 2015, this Court made orders, by consent, quashing the Tribunal’s decision and remitted the matter for reconsideration. The parties were agreed that the application should be remitted on the basis that the first Tribunal had failed to consider a claim made by the applicant; namely, that he would be at risk of harm by reason of his being a member of a particular social group. The particular group in question was said to be ‘returnees from the West’.
The applicant was invited to attend a hearing before a differently constituted Tribunal, scheduled for 16 December 2015.
On 9 December 2015, the applicant’s lawyers filed a further detailed submission together with a range of supporting documents.
On 16 December 2015, the applicant attended a hearing before the Tribunal accompanied by his lawyer and assisted by an interpreter. Evidence was given by the applicant and another witness.
On 13 January 2016, the applicant’s lawyers filed another submission in response to matters that had been raised during the Tribunal hearing and addressed: (1) a summary of the applicant’s claims; (2) relocation; (3) country information; (4) other Tribunal decisions. Further supporting documentation was also provided.
On 12 February 2016, the applicant’s lawyers filed a further submission addressing the applicant’s psychological health and provided a report from Mr Frank Donnoli, psychologist, who had seen the applicant on three occasions since 18 January 2016.
On 24 February 2016, the Tribunal affirmed the delegate’s decision to refuse the applicant a protection visa application, providing a statement of its reasons for so deciding (Reasons).
Procedural History
On 23 March 2016, the applicant filed an application for judicial review of the Tribunal’s decision made on 24 February 2016.
An affidavit affirmed by the applicant’s lawyer on 23 March 2016 exhibited a copy of the Reasons but adduced no further evidence in support of the application for judicial review of the Tribunal’s decision.
By a Response filed on 7 April 2016, the Minister contended that the grounds of the application did not establish any jurisdictional error in the Tribunal’s decision and sought dismissal of the application.
On 16 August 2016, orders were made by consent dispensing with a show cause hearing and listing the matter for final hearing. Further orders were made regulating the filing by the applicant of any amended application, affidavits, written submissions and a list of authorities.
On 2 May 2017, the applicant filed an amended application, affidavit, list of authorities and written submissions. An affidavit sworn by the applicant’s lawyer exhibited a transcript of the Tribunal hearing.
On 12 May 2017, an affidavit was filed on behalf of the Minister which exhibited a certificate issued pursuant to s 438 of the Act together with the documents to which it related and a request made by the applicant’s lawyers under the Freedom of Information Act 1982 (Cth). The documents to which the s 438 certificate related concerned finger print information relating to the applicant. As events evolved, no issue was raised in relation to the s 438 certificate or related documents.
Consideration
Prerogative relief of the kind sought in this application is available only where the impugned decision is affected by jurisdictional error: s 476. Absent jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Tribunal’s decision: sub-s 476(2); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
While the amended application advanced three grounds of review, only Grounds 1 and 3 were pressed. I address each in turn.
Ground 1 – failure to consider a claim: ‘collateral harm’
Ground 1 reads:
The Tribunal failed to consider a clearly articulated argument based on established facts, being that the applicant may be collaterally harmed as a result of his political profile and/or activities. (emphasis added)
It was submitted that the clearly articulated argument upon which the applicant had relied was that he may be collaterally harmed as a result of his political profile and/or activities. The established facts upon which the ground of review rested was that the applicant was found to have a low political profile by dent of his ANP affiliation. Contextually, counsel for the applicant presented Ground 1 on the basis of an express concession that the Tribunal had rejected the applicant’s primary claim that he was at risk of harm as a high-profile member of the ANP.
The applicant correctly submitted that the Tribunal had found he faced a well-founded fear of persecution in his home region by reason that: (a) country information supported a conclusion that the Taliban was active in the Swat Valley and targeted those who were perceived to be high-profile opponents; (b) on occasion, those targeted attacks caused collateral attacks to, or killed, lower profile individuals who were physically proximate to the high-profile opponent; (c) the applicant’s profile was sufficient to mean that there was a real chance he might be harmed as a result of collateral damage. It was further submitted that the Tribunal’s findings involved the acceptance of a clearly articulated argument which had been made by the applicant’s lawyer at the hearing.
Reliance was placed upon the transcript which recorded a submission by the applicant’s lawyer who had pointed to a DFAT Country Report on Pakistan dated 14 August 2015 in which it had been accepted that ANP members had been subjected to ongoing violence and that, although high-profile members were the primary targets of such attacks, this also affected low-level party members. The Tribunal had found that the applicant was not of a sufficiently high-profile as to attract the risk of an attack that was targeted at him in his own right.
It was submitted that a claim based upon the applicant being a low-profile member of ANP was a claim separate from whether the applicant would be targeted because of his own political activities and that one of the necessary inquiries to be addressed in relation to the applicant’s relocation to Lahore was whether it was safe for him to do so.
The substantive basis of the challenge was that the Tribunal had evaluated the question of relocation solely by reference to the question whether the applicant would be targeted in Lahore by reason of his own profile and that it had erred in failing to evaluate relocation upon the distinct footing that the applicant’s activities may expose him to collateral harm by reason of his likely continued association with persons of higher profiles who would be directly targeted by the Taliban.
The Minister submitted that the Tribunal had properly dealt with the suggestion that there was a risk of harm arising from the possibility of low-profile individuals being harmed because they may be proximate to a person having a high-profile. I agree.
The Reasons were comprehensive and examined the applicant’s claims and the material which was before it, including the post-hearing submissions that were filed. While the applicant’s diagnosis of post-traumatic stress disorder had not been raised during the hearing, the Tribunal was prepared to consider this also.
The Tribunal had concerns as to the applicant’s credibility and found that he had given evidence which was contradictory, embellished or incorrect. It found that the applicant would not be harmed by Pakistani authorities or the Taliban on the basis of his being a returnee from the West.
The Tribunal also found that the applicant was not a member of the ANP. Nor did it accept that the applicant’s immediate family held a prominent position in the ANP. It accepted that they may be seen as ANP supporters.
The Tribunal was prepared to accept that the applicant may be a low-profile member of the ANP but found that he did not hold a position of authority. It accepted that the applicant had been a member of the Peace Committee in his local village which was opposed to the Taliban.
The Tribunal accepted that the applicant’s family were low-profile ANP supporters but found that their profile was confined to the Swat Valley where they lived. It also accepted that there had been acts of violence against members of the Peace Committee, finding that while attacks were on higher profile ANP members, it was plausible that the attacks had affected lower-profile members also. On those findings, the Tribunal found to be real the chance that the applicant could be seriously harmed because of the involvement by him and his family in the Peace Committee and the ANP, including from the Taliban: Reasons, [90]-[91].
The Tribunal found that the situation in the Swat Valley remained extremely dangerous and volatile and that State protection would not be available to the applicant. Thus it considered, in detail, whether it was reasonable for the applicant to relocate: Reasons, [95]-[147]. The Tribunal found that the risk of harm arising from the applicant’s claims would not extend to other locations in Pakistan. It found that, outside of the Swat Valley, the applicant would not be at risk of harm by the Taliban because of an imputed political opinion or his ethnicity. In particular, it found that Pashtuns were not subject to discriminatory acts of violence by reason of ethnicity alone and found that although the applicant might face some initial suspicion, he would not face a risk of harm in Lahore. It found that the applicant would not be at risk of harm due to his mental health for any reason. The Tribunal found that relocation to Lahore would be reasonable, in the sense of practicable. Employment could be found and support received from members of the Pashtun population. The applicant’s mental health issues, though over-stated, would not impede his ability to find work and would not make it unreasonable for him to relocate. It also found that there was a limited risk of harm by reason of the applicant’s actual or imputed political opinion.
It may be questioned whether the applicant had made a claim that he was at risk of harm because of his being a low-profile member of the ANP. The substantive basis of the applicant’s claim to protection was that his profile as a member of the ANP meant that he, personally, would be targeted by the Taliban: see: (1) applicant’s statement dated 30 June 2012 at par 2; (2) the submissions of the applicant’s lawyers dated 30 May 2013 at p. 2: “his family is politically prominent”; (3) the submissions of the applicant’s lawyers dated 9 December 2015 at paras 13-24; (4) the submissions of the applicant’s lawyers dated 13 January 2016 at par 2a and 2b. In particular, in a statement dated 9 December 2015, the applicant contested the finding of the first Tribunal that he had only limited involvement in the ANP, stating that this was not true and expanding upon the nature of his political involvement at paras 9-12. On one view, it appears somewhat contradictory to claim to have been, at one and the same time, a high and a low-profile member of the ANP. At the least, the nature of the risk of harm was qualitatively different.
It is by reason of the Tribunal’s obligation under s 414(1) to conduct afresh a review of the merits of a valid application that the components, or integers, of each claim must be considered: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 at [42]; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [55]-[63]; Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99.
On judicial review the Court will insist that a Tribunal’s decision be considered in light of the basis on which the application was made: S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 at [1] (Gleeson CJ); SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [50] (Robertson J). Here, the Tribunal rejected the applicant’s claim to be a high-profile member of ANP: Reasons, [80], [90]. This finding was not challenged.
Having to deal with the rejection of his primary claim, the applicant presented the claim for judicial review on what was described as a fall-back position which had been put by the applicant’s lawyer “in the running”. In lieu of the high-profile claim, it was said that the applicant faced the risk of ‘collateral’ harm from being in the vicinity of a high-profile member of ANP who was then targeted. The evidentiary source of that fall-back claim was the DFAT report to which the Tribunal had been referred by the applicant’s lawyer: see above at [33]. The Minister adopted the stance that, by his reliance on being a low-profile member of ANP, the applicant had narrowed the scope of his claim for protection.
I accept the Minister’s submission that the short answer to Ground 1 is that the Tribunal did deal with that claim. The Tribunal accepted that as a low-profile member of ANP, the applicant might be harmed in the Swat Valley. It accepted that the chance of harm was real: Reasons, [91]. It was for this reason that the Tribunal turned to consider relocation and when doing so it again addressed the risk of harm to the applicant. In particular, the Tribunal proceeded to consider the applicant’s circumstances and thereby addressed the applicant’s risk of harm from collateral damage if relocation was to occur. In so addressing that risk, the Tribunal had regard to country information which indicated that there was no information to suggest that ANP members were being harmed across Pakistan: Reasons, [98]-[108].
The Court should be slow to find that a Tribunal has failed to consider a claim where, as here, the reasons are otherwise detailed and comprehensive: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [47].
Read fairly and as a whole, the Reasons, which are comprehensive, confirm that Tribunal considered the fall-back claim and dealt with it.
Accordingly, I reject Ground 1.
Ground 3 – failure to correctly apply relocation test
Ground 3 reads:
The Tribunal failed to correctly apply the relocation test, in that it did not determine whether it would be reasonable for the applicant to remain in Lahore. (emphasis added)
Relying on Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317, the applicant submitted that where a particular place or city was postulated for the purposes of the relocation test, a distinct element of the reasonableness of relocation was whether it was reasonable for the person to remain in that particular place or city.
Before the Tribunal, the applicant had given evidence that he would be unable to reside in one location in Pakistan and would be moving around (as his brother was doing), and that he could not be “living in a cave” for the remainder of his life. Later, the applicant said that he “cannot be forcibly and possibly residing in one location and for a long time.” Importantly, the basis for this claim was that he, like his brother, could be identified very easily. As I understood the submission, the combined effect of the evidence was that, as the applicant was so easily identifiable, he would need to be on the run to be able to live safely in Pakistan. The implicit basis for that objection to relocation was the applicant’s high-profile as a member of ANP.
The substantive challenge under Ground 3 was that the Tribunal had not evaluated whether, in light of that evidence, it would be reasonable for the applicant to remain in Lahore. The applicant’s objection to relocation was that if the applicant had to be perpetually on the run, remaining in Lahore was inimical to his safety.
The Minister submitted that, when assessing relocation, the Tribunal did not have an obligation to consider the reasonableness of an applicant remaining in one place. Further, it was submitted that the applicant had failed to recognise that it was because of the facts presented by SZSCA that the question of relocation was raised because it was unreasonable for SZSCA to remain in his home in Kabul. Finally, it was submitted that the applicant’s contention that he would have to move around to avoid being targeted by the Taliban had been dealt with and rejected by the Tribunal; the Tribunal finding that the applicant would be safe in Lahore, that he would not be targeted in that location and so there would be no need for him to move from Lahore.
I accept the Minister’s submission that the facts presented by SZSCA are distinguishable from those of the present case. Relevantly, the error that was identified by the plurality in SZSCA was that relocation from the applicant’s home in Kabul had not, but should have been considered. It was the applicant’s inability to remain in Kabul that impelled the Tribunal to consider relocation: SZSCA, [27]-[29]. Earlier, the plurality had observed at [20] that the consideration of whether a person could be relatively safe in their home city so long as he or she remained there raised analogous considerations to those which arose in the context of internal relocation: see also Gageler J at [39], [46].
The error identified by the plurality in in SZSCA was that relocation had not been considered. The relevance of a person remaining in a town or place was employed to demonstrate that the risk of harm to the applicant from remaining in his home city had not been considered. French CJ, Hayne, Kiefel and Keane JJ, stated at [29]:
The Tribunal in this case did not consider that the internal relocation principle applied, because the respondent already lived in Kabul. The Tribunal therefore did not consider the question whether the respondent could reasonably be expected to remain there and not transport materials on the roads outside Kabul, where he would be at risk of harm. This was an incorrect approach.
The plurality underlined the need, in a protection visa application, to consider the risk of harm to the particular applicant from returning and, in that case, not merely the applicant’s living conditions, but his ability to earn a living if he was to remain in Kabul, stating at [31]:
. . . it is not just the living conditions for the respondent in Kabul – and whether he would face a real chance of persecution if he stayed there – which should have been considered by the Tribunal. Rather, it was necessary for the Tribunal to consider 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.
And at [32], their Honours stated:
The Tribunal did not address this question. It did not address what was necessary to an enquiry whether it was reasonable to expect the respondent to remain in Kabul and not drive trucks outside it. . .
French CJ, Hayne, Kiefel and Keane JJ were concerned to demonstrate that the Tribunal’s error lay in failing to consider relocation at all, particularly in circumstances where the likely economic impact of the applicant remaining in his home town had not been considered. This conclusion arose in the context of whether it was reasonable for the applicant to remain in Kabul, the plurality having accepted that the evaluation of whether a person had a well-founded fear of persecution raised considerations analogous to those arising upon internal relocation.
In a dissenting judgment, Gageler J at [39] observed that one element which would deny a person the status of refugee within the definition provided by Art 1A(2) of the Refugees Convention was that the person must be outside their country of nationality owing to their well-founded fear of persecution. His Honour held at [41] that this element of the definition posed two questions: “whether there is a region within the country of nationality in which there is no appreciable risk of the persecution of which the person has a well-founded fear; and, if so, whether or not it would be reasonable for the person to locate within that region on return to his or her country of nationality.”
His Honour considered that there were real differences between the enjoyment of fundamental rights and the level of such enjoyment. By extension, the test of relocation was concerned with reasonableness, not quality of life. Gageler J dissented in the result because he considered that the Tribunal was correct to conclude that the question of relocation did not arise on the finding which it made that there was no appreciable risk of persecution if the respondent returned to and remained in Kabul. His Honour concluded that the Tribunal had confronted and answered the correct question: see at [43]-[46], [50].
SZSCA does not restate a new test of internal relocation or inject a separate requirement that a person’s ability to remain in a new town or city was also to be examined, but endorses the proposition that the nature of the test entailed “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”: 254 CLR 317, [30]. In each case, the inquiry remains fact intensive: CSO15 v Minister for Immigration and Border Protection [2018] FCAFC 14, [48].
I am fortified in this view by the conclusion expressed in CSO15 by Tracey, Mortimer and Moshinsky JJ who held at [39]:
. . . we do not consider that the High Court’s decision in SZSCA (whether the majority or Gageler J) marks some entirely new approach to the Art 1A assessment, which requires considerations of reasonableness and practicability to be injected into every decision-making exercise about whether a person has a well-founded fear of persecution in her or his country of nationality.
If a Tribunal concludes that a person would not be safe from harm if they returned to and remained in their home town, it is necessary to consider the safety of relocation and whether it is reasonable, in the sense of practicable, for the applicant to relocate to another part of their country.
While it may be a material consideration, I do not accept that the test of internal relocation entails the separate consideration of whether it would be reasonable for a person to remain in a postulated town or city. However, I consider that the Minister’s first submission at [56] above stated too broadly the approach to be taken to relocation. Relocation is not to be approached by assessing the reasonableness of an applicant remaining in one place. The test to be applied should be applied according to its terms. Is it reasonable in the sense of practicable for a person to relocate safely to another place within their country of nationality having regard to the particular circumstances of the applicant and the impact of relocation upon that person? If it is reasonable, the person will not meet the Convention definition of refugee. If it is not, the other elements of the definition remain to be considered.
While the question whether relocation is reasonable is to be equated with whether it is practicable, an answer to the question must also depend upon the particular circumstances of the applicant and the impact of relocation upon that person: SZSCA, [27]. In that context, an objection to relocation may well be that it is not reasonable for a person to remain in a postulated city or town. But it is necessary to locate the applicant’s objection to internal relocation at the appropriate point in the analysis.
In AHK16 v Minister for Immigration and Border Protection [2018] FCAFC 106, Mortimer, Moshinsky and Thawley JJ stated at [29]:
An “objection” made by a visa applicant to relocation has no conceptual or statutory status in the task of determining whether the causal element of Art 1A of the Refugees Convention is satisfied. As Mortimer J noted in MZANX, matters raised by a visa applicant (whether by way of “objection” or otherwise) are likely to form part of the framework in which a decision-maker will need to assess the safety and reasonableness/practicability of a person returning to a particular part or parts of her or his country of nationality.
The Honours’ analysis illustrates the need to identify how the objection had been framed and whether it had been clearly articulated: see at [56].
As the reasoning in AHK16 at [27]ff confirms, the content of the applicant’s objection to relocation may, and often will, form part of the framework within which relocation is to be evaluated. But that is a very different thing to reformulating the settled test of internal relocation.
To locate an objection within the framework in which the decision-maker is to assess the reasonable practicability of relocation is to recognise both that, while neither party is subject to an onus before the Tribunal, it is for the applicant to put forward the evidence which he or she wishes the Tribunal to consider, and that it is for the Minister to be satisfied that the criteria for a visa are satisfied: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594at [84] (Gummow J); see also SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 164, [40] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ). Thus, the applicant is afforded an opportunity to make out the evidentiary basis for his or her objection.
In my opinion, the applicant misstated the test of relocation and sought to add a free-standing further requirement of the test that it be reasonable for the person to remain in the postulated alternate town or city. When the issue of remaining safely in an alternative location is raised as an objection to relocation, the consideration of such an objection, including whether it is supported by cogent evidence, forms part of the framework within which relocation is to be evaluated.
As has been stated in other contexts, to do other than apply the internal relocation test in the terms in which it has been stated will distract attention from the relevant question: cf CRI026 v The Republic of Nauru [2018] HCA 19, [42]-[43]; CRI028 v The Republic of Nauru [2018] HCA 24, [22]-[26]; CSO15 v Minister for Immigration and Border Protection [2018] FCAFC 14, [42]-[48]; BHB16 v Minister for Immigration and Border Protection [2018] FCAFC 42, [33]; AHK16 v Minister for Immigration and Border Protection [2018] FCAFC 106, [27]-[29].
I reject the submission that the Tribunal failed to apply the correct test. The Tribunal stated the test in a comprehensive form and did so by reference to authority in its Reasons at [95]. It stated:
There remains the question of whether the applicant will face less than a real chance of serious harm or real risk of significant harm by relocating to a different part of Pakistan. It is well settled that the focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country: Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at 440-1. 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, and where it is reasonable, under all the circumstances, in the sense that it is practicable, to expect him to seek refuge in another part of the country. ‘Reasonable’ will depend upon the particular circumstances of the applicant and the impact of relocation upon that person within the person’s 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. The Convention is concerned with persecution in the defined sense, and not with living conditions in a broader sense.[1]
I see no error in this statement and, apart from the challenge made by Ground 3, no other criticism of para [95] of the Reasons was made.
[1]Citing SZATV v MIAC [2007] HCA 40 and SZFDV v MIAC [2007] HCA 41, per Gummow, Hayne and Brennan JJ, Callinan, J, agreeing.
The challenge made by Ground 3 was, in substance, that the Tribunal failed to consider the applicant’s objection that, whether he was a high or low-profile member of the ANP, he would have to be continually on the move and so could not safely remain in Lahore.
The applicant’s objection that he could not remain in Lahore was made in the context of a claim that he could not relocate at all. This was the submission which had been made and the evidence which the applicant had given at para 17 of his statement dated 9 December 2015. And this was the evidence which the applicant had given before the Tribunal as referred to at [54] above. It was on the basis of the evidence given to the Tribunal that the applicant mounted his primary claim but then made the fall-back submission that low-level ANP members were at risk of collateral harm. The challenge in Ground 3 required, in effect, a finding that a low-profile ANP member would need to live on the run.
The disconnection between that evidence and Ground 3 was that the Tribunal had rejected the applicant’s primary claim that he was at risk because he was a high-profile member of ANP. It was said that the applicant’s alternative fall-back claim to being a low-profile member of the ANP had been advanced in the hearing ‘on the run’. The evidence given by the applicant was that by reason of his high-profile role in the ANP, he would have to be continually on the move and for that reason, as he said, should not have to live in a cave. Implicit in the findings made by the Tribunal was that a low-profile member would not need to be continually on the run. The explicit findings which were made undermined a contrary conclusion.
The applicant did not contest the Tribunal’s conclusion that the applicant was not a high-profile member of ANP. Accordingly, the question of internal relocation fell for consideration having regard to the applicant’s individual circumstances, including that he was a low-profile member of ANP. In turn, the question whether it was reasonable in the sense of practicable for the applicant to relocate to Lahore included an evaluation of whether he would become collateral damage to a high-profile target.
Having rejected the claim that he was a high-profile member of ANP, the Tribunal was entitled to conclude on the whole of the material before it that it was reasonable in the sense of practicable for the applicant to relocate to Lahore. Whether it might have been untenable for a high-profile member of ANP to remain in a particular location was not a question presented on the evidence or other material before the Tribunal having regard to the applicant’s individual circumstances. The applicant was not a high-profile member of ANP. Assuming the applicant had clearly articulated a claim to protection on the basis that he was at risk of collateral harm as a low-profile member of ANP, this did not of itself support conclusions that the applicant would have had to remain in hiding and so could not remain in Lahore. The objection to relocation was not supported by established facts and was undermined by other material upon which the Tribunal was entitled to rely. It was for the applicant to make out the material facts to support his objection.
In my view, the Reasons confirm that the Tribunal correctly applied the relocation test. The Tribunal gave detailed consideration to the matter and concluded that, having considered the applicant’s circumstances individually and cumulatively, it was reasonable in the sense of practicable, for the applicant to relocate in Pakistan: Reasons, [144]. The conclusion so reached by the Tribunal was an available finding which was reasonably open on the evidence and material before it.
When the issue arises, the question which is to be asked and answered by an administrative decision-maker is whether relocation is reasonable, in the sense of practicable, and this must depend upon the particular circumstances of the applicant and the impact of relocation upon that person. Where that has occurred, the decision-maker’s reasons ought not be examined in an over-zealous manner with an eye attuned to error: SZSCA, at [50] per Gageler J citing Minister for Immigration and Ethnic Affairs and Citizenship v Wu Shan Liang (1996) 185 CLR 259, 272.
I reject Ground 3.
Conclusion
The applicant has not demonstrated any error in the decision of the Tribunal. Not being satisfied that any such error has been demonstrated, no occasion arises to consider whether an error was of such gravity as to be jurisdictional in nature and if so, what relief would be appropriate.
The application must be dismissed.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Date: 26 July 2018
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