MZAPB v Minister for Immigration

[2016] FCCA 1553

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAPB v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1553

Catchwords:
MIGRATION – Refugee Review Tribunal – protection visa – the tribunal accepted that the applicant faced a real chance of persecution in his home region – the tribunal considered that the applicant could reasonably relocate within Pakistan – whether the tribunal considered the applicant’s personal circumstances, and in particular, whether the tribunal considered the practicalities of the applicant settling in new location with his wife and six young children.

Legislation:
Migration Act 1958
Migration Regulations 1994

Cases cited:
MZZQV v Minister for Immigration and Border Protection [2015] FCA 533
NAIZv Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 37
Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437, (1994) 35 ALD 1, (1994) 124 ALR 265
SZTAV v Minister for Immigration and Citizenship and Anor (2007) 233 CLR 18, (2007) 97 ALD 1, (2007) 237 ALR 634, (2007) 81 ALJR 1659, [2007] HCA 40

Applicant: MZAPB

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG2491 of 2014

Judgment of: Judge Riley

Hearing date: 24 May 2016

Date of last submission: 24 May 2016

Delivered at: Melbourne

Delivered on: 24 June 2016

REPRESENTATION

Counsel for the applicant: Jessie Taylor

Solicitors for the applicant: Victoria Legal Aid

Counsel for the first respondent: Liam Brown

Solicitors for the first respondent: DLA Piper Australia

Counsel for the second respondent: No appearance

Solicitors for the second  respondent: DLA Piper Australia

ORDERS

1. The application filed on 10 December 2014 and amended on 1 April 2016 be dismissed.

2. The applicant pay the first respondent’s costs, fixed in the sum of $7,206.

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
MELBOURNE

MLG 2491 of 2014

MZAPB

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for review of a decision made by the Refugee Review Tribunal (“the Tribunal”). In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. 

2. Both the delegate and the Tribunal accepted that the applicant faced a real chance of serious harm in his home region of Pakistan. However, both the delegate and the Tribunal considered that the applicant could reasonably relocate within Pakistan. The essence of the application for review is that the Tribunal is alleged to have failed to consider the practicalities of the applicant settling elsewhere in Pakistan given that he has a wife and six young children.

The applicant’s claims

1. The applicant is a citizen of Pakistan. He is a Turi Pashtun and a Shia Muslim. He has six children born between 2000 and 2012. His wife and children remain in Parachinar, Pakistan, along with his father, mother and siblings.

2. The applicant claimed that he faced a real chance of persecution as a Shia Turi from Parachinar.  He claimed that as a Turi, he would be perceived as sympathetic to NATO and other foreign forces. He claimed that it would not be safe for him to live anywhere in Pakistan because he was identifiable by his dialect as a Shia Turi from Parachinar.

The Tribunal’s reasons

1. The Tribunal accepted the applicant’s basic claims.  In particular, the Tribunal accepted that the applicant was of Pakistani nationality and citizenship and that he was a Shia Turi from Parachinar who was married with six children. The Tribunal accepted, based partly on independent evidence, that there were high levels of sectarian violence in Parachinar that were largely directed towards the Shia community. The Tribunal accepted that the applicant had witnessed a Taliban bombing of a Shia mosque in 2012 that left many people dead.

2. The Tribunal accepted that the applicant faced a real chance of persecution in the reasonably foreseeable future if he were to return to Parachinar. The Tribunal accepted that the essential and significant reason for this was the applicant being a Shia Pashtun from the Turi tribe.  The Tribunal accepted that the Pakistani authorities were not able to provide an adequate level of protection to people like the applicant in Parachinar.

3. However, the Tribunal then concluded that it would be reasonable for the applicant to relocate to Islamabad or Rawalpindi.  The Tribunal considered that the applicant had not been specifically sought by the Taliban in Parachinar.  The Tribunal considered that, even as a returnee from the West, and as a Turi Shia from Parachinar, there was not a real chance that the applicant would attract the attention of extremist groups such that he would suffer harm in either Islamabad or Rawalpindi.

4. More specifically, the Tribunal said in relation to the reasonableness of the applicant relocating within Pakistan:

   As indicated above, it has been submitted that there are several reasons as to why it is not reasonable for the applicant to relocate elsewhere in Pakistan. These include that the applicant has not previously resided elsewhere in Pakistan; he will have to modify his religious practise due to the fear of attacks; he will have difficulty obtaining employment given his lack of high levels of education. It has also been submitted by the representative, in response to the Tribunal’s comments that he has been able to settle in Melbourne and move to different accommodation, that in Melbourne he had considerable assistance in Australia from various agencies, which are not available in Pakistan, and the situation he faced in Melbourne is not comparable to Pakistan. It was also submitted that the fact that he has never lived anywhere else and has no support networks outside of Parachinar will affect his ability to obtain employment in places such as Islamabad and Rawalpindi. It is further submitted that the applicant has no employment or educational opportunities that may be of assistance if he is forced to relocate. Although he can read and write and is educated until Year 10, he has no college or university education and working or opening a shop in a non-Shia dominated area will be almost impossible for him.

   The Tribunal accepts that the applicant has previously resided only in Parachinar whilst in Pakistan. The Tribunal also accepts that the applicant does not presently have any family members in other parts of Pakistan, and his wife, children, parents and siblings reside in Parachinar. The Tribunal accepts that the applicant has been unable to find employment in Australia due to his inability to speak English. The Tribunal accepts that the applicant is not highly educated, at least by Western standards, and his previous employment has been limited to working in a shop. The Tribunal also accepts that the applicant has a slight speech impediment. The Tribunal is not satisfied that these factors are such that they establish that it is unreasonable for the applicant to relocate to another part of his own country. As discussed during the hearing, he has resided in Australia for over two years, making some of the trip by boat, undoubtedly a perilous and dangerous journey, requiring a considerable degree of resilience and resourcefulness. The Tribunal accepts the submission that he has had the assistance of several agencies which assist asylum seekers in Australia and he would not have such resources in Pakistan. However, he has nevertheless managed to settle in Australia where his evidence indicates he has no family or friends and where he does not speak the language. The Tribunal is not satisfied that the applicant would be unable to re-settle in a different city in his own country where he is able to speak both Pashto and Urdu and he is at least familiar with social customs and various other factors which will enable him to re-integrate into Pakistan society.

   The Tribunal accepts that it may take the applicant some time to re-establish himself in terms of employment. He has, however, worked for 10 years in Pakistan and the Tribunal does not accept that there is any evidence that he will be unable to obtain some form of employment upon his return to Pakistan. The Tribunal does not accept that the fact that he is a Pashtun, Turi Shia from Parachinar means that he will be discriminated against in terms of accommodation or employment in Islamabad and Rawalpindi, given advice from the Department of Foreign Affairs and Trade indicating that Shias are a diverse group, occupying the lowest levels and higher levels of Pakistan’s economic and social strata. There is also no evidence indicating that Shias are discriminated against in terms of in government positions, the police, the military or the private sector. The applicant’s own evidence also indicates that his family is wealthy and he has been financially supported by his father for relatively lengthy periods in the past, his father supported him to travel to Australia and is currently supporting his wife and children. The applicant claimed, when this was discussed during the hearing, that he does not know whether his father would support him in the future. The Tribunal does not accept the applicant’s claim. The Tribunal considers that the applicant’s father’s preparedness to support the applicant and his family for considerable periods of time is indicative of the fact that he has both the means and willingness to continue to do so. The Tribunal is satisfied, therefore, that although the applicant’s father resides in Parachinar that the applicant will continue to have his support and assistance upon his return to another part of Pakistan. (footnote omitted) (emphasis added)

   The Tribunal also does not accept the submission that the applicant will be unable to travel outside of particular areas in Islamabad or Rawalpindi and, therefore, unable to obtain employment or that he will be unable to obtain employment in Sunni areas. The Tribunal is not satisfied that there is any evidence to support this submission and, as discussed above, the evidence in relation to discrimination against Shias and conflict between Sunnis and Shias at a communal level is limited. Additionally, as stated above, the Tribunal does not accept that the applicant has to modify his conduct in Islamabad or Rawalpindi in terms of the practice of his religion to avoid harm.  As above, the Tribunal has given its reasons as to why the risk of him suffering serious harm in Islamabad or Rawalpindi is remote. In making that assessment, the Tribunal has considered and is aware of the failure of Pakistani authorities to prevent attacks on Shias and prevent extremist groups from operating.  The Tribunal acknowledges these submissions and the evidence provided in relation to this issue, but it does not alter the Tribunal’s view as to the risk of him suffering serious harm in either Islamabad or Rawalpindi. Whilst the Tribunal accepts that the applicant has witnessed violent incidents and was involved in assisting injured persons and giving blood, and that these would inevitably have had an impact on his emotional and psychological state, the Tribunal is not satisfied that he would be forced to live in fear if he relocated outside of Parachinar or that such factors make it unreasonable for him to do so. Although not specifically raised by the applicant, the Tribunal also accepts that the applicant may wish for his family to join him in Islamabad or Rawalpindi at some point. The Tribunal has accepted that it is dangerous for persons to travel outside of Parachinar on the Parachinar-Thall Road. However, the applicant himself travelled outside of Parachinar to seek Australia’s protection and the applicant’s family would have to do this whether they were travelling to Australia or elsewhere in Pakistan. The Tribunal is not satisfied it is unreasonable in the applicant’s circumstances for him to make arrangements to enable his family to join him in Rawalpindi or Islamabad, should he wish to do so.  In all the circumstances, the Tribunal is satisfied that it is reasonable for the applicant to relocate to Islamabad or Rawalpindi, its twin city. (emphasis added)

Ground of application

1. The ground of review in the application filed on 10 December 2014 and amended on 1 April 2016 is:

   The Tribunal erred in its consideration of whether the applicant could relocate within Pakistan, in that it failed to consider whether it was “reasonable, in the sense of practicable, in the applicant’s circumstances” for the applicant to relocate within Pakistan.

   Particulars

   The Tribunal failed to consider that the applicant’s personal circumstances include that he is responsible for his entire family unit, including six young children, and whether internal relocation was reasonable in the sense of practicable in those circumstances.

Authorities

1. In the decision of the Full Court of the Federal Court in Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437, (1994) 35 ALD 1, (1994) 124 ALR 265, Black CJ said:

   14.This further question [of the reasonableness of relocation] is an important one because notwithstanding that real protection from persecution may be available elsewhere within the country of nationality, a person's fear of persecution in relation to that country will remain well-founded with respect to the country as a whole if, as a practical matter, the part of the country in which protection is available is not reasonably accessible to that person. In the context of refugee law the practical realities facing a person who claims to be a refugee must be carefully considered.

   15.Moreover, the range of the realities that may need to be considered on the issue of the reasonableness of relocation extends beyond physical or financial barriers preventing an applicant for refugee status from reaching safety within the country of nationality and easily extends to circumstances such as those present in R v Immigration Appeal Tribunal Ex parte Jonah [1985] Imm. AR 7. Professor Hathaway, op cit at p 134, expresses the position thus:

   “The logic of the internal protection principle must, however, be recognised to flow from the absence of a need for asylum abroad. It should be restricted in its application for persons who can genuinely access domestic protection, and for whom the reality of protection is meaningful. In situations where, for example, financial, logistical, or other barriers prevent the claimant from reaching internal safety; where the quality of internal protection fails to meet basic norms of civil, political, and socio-economic human rights; or where internal safety is otherwise illusory or unpredictable, state accountability for the harm is established and refugee status is appropriately recognized.” (Emphasis in original text)

   16.If it is not reasonable in the circumstances to expect a person who has a well-founded fear of persecution in relation to the part of a country from which he or she has fled to relocate to another part of the country of nationality it may be said that, in the relevant sense, the person's fear of persecution in relation to that country as a whole is well-founded. I should add that this seems to me to be a better way of looking at the matter than to say, as the first and last sentences of paragraph 91 of the Handbook suggest, that the fear of persecution need not extend to the whole territory of the refugee's country of nationality if under all the circumstances it would not have been reasonable to expect a person to relocate.

2. In the High Court’s decision in SZTAV v Minister for Immigration and Citizenship and Anor (2007) 233 CLR 18, (2007) 97 ALD 1, (2007) 237 ALR 634, (2007) 81 ALJR 1659, [2007] HCA 40 at [81], Kirby J said:

   An inability or unwillingness on the part of the national authorities to provide protection in one part of the country may make it difficult to demonstrate durable safety in another part of that country. In some circumstances, having regard to the age of the applicant, the absence of family networks or other local support, the hypothesis of internal relocation may prove unreasonable. In each case, the personal circumstances of the applicant; the viability of the propounded place of internal relocation; and the support mechanisms available if an applicant has already been traumatised by actual or feared persecution, will need to be weighed in judging the realism of the hypothesis of internal relocation. (citations omitted)

3. In the Federal Court decision in MZZQV v Minister for Immigration and Border Protection [2015] FCA 533, Barker J said:

   68.All the authorities cited to this point, including the passages from Kirby J’s judgment, are to the effect that a range of issues may become relevant to the question of whether internal relocation is reasonable, depending on the circumstances and the issues raised by an applicant for refugee status, and, when they do, must be carefully regarded by the decision maker.

   69.Here, the appellant contends that the Tribunal failed to evaluate an express, clear and repeated objection to relocation that was made to it by the appellant, on the basis that it would be unreasonable in his particular circumstances to relocate to a place in Pakistan where he has no family. The appellant says that the primary judge erred in not finding that this was so.

   …

   95.What is clear is that the familial support objection to relocation was made in reasonably broad terms. It is true to say that there was no detailed set of particulars, if one likes, to flesh out that objection. But the objection was made. And it was not expressly responded to and, on the face of it, not expressly considered by the Tribunal. (emphasis added]

   …

   101.In all these circumstances, the Court considers that the appellant has established that an error was made by the Tribunal in not considering the particular familial support objection to relocation raised by the appellant, which error amounts to a jurisdictional error.

4. In NAIZv Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 37, Branson J, with whom North J agreed, said:

   22 I do not accept the appellant’s submission that there was no probative evidence on which the Tribunal could conclude that it would not be unreasonable for the appellant to relocate within Fiji. However, the summary way in which the Tribunal dealt with the issue of relocation, including its failure to explore the significance of the appellant’s references to having no-one in Fiji ‘to look after her’, causes me to conclude that the Tribunal did not apply the right test when it concluded that it was satisfied that, with the assistance of her daughter, the appellant would be able to relocate within Fiji. The Tribunal did not, as the passage from Randhawa set out in [16] above requires, give consideration to the practical realities facing the appellant with respect to accommodation and care should she seek to relocate within Fiji. This is not to say that it was not open to the Tribunal to conclude that the appellant could deal with those practical realities, perhaps with financial help from her daughter. However, the Tribunal was required to give consideration to how, in a practical sense, the appellant could reasonably be expected to relocate within Fiji.

   23 For the above reasons, in my view, the Tribunal’s reasons for decision reveal that it misconceived the elements of the test for determining whether the appellant is a person in respect of whom Australia owes protection obligations under the Convention within the meaning of s 36 of the Act. The Tribunal appreciated that it was required to consider the ‘internal flight alternative’, and that for that purpose it was required to determine whether it would be unreasonable for the appellant to relocate within Fiji. However, I am satisfied that, because it misconceived the content of the requirement that it not be unreasonable for the appellant to relocate within Fiji, it did not ask itself the right questions before determining that it was not satisfied that the appellant is a person in respect of whom Australia owes protection obligations under the Convention. Consequently, in my view, the decision of the Tribunal is not a decision made by it under the Act in the sense discussed by the High Court in Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 (see also Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179). The learned Federal Magistrate, in my view, erred in rejecting the appellant’s claim for judicial review of the decision of the Tribunal.

The applicant’s submissions

1. The applicant submitted that the Tribunal accepted that the applicant’s family unit consisted of six children born between 2000 and 2012. The applicant also submitted that the applicant’s representative squarely raised the issue of the applicant’s children in relation to the reasonableness of relocation by saying at the Tribunal hearing:

   The applicant has the responsibility of looking after not only himself but also his entire family unit which does consist of a number of very young children. I note that all these factors should be taken into account in the assessment of relocation.

2. The applicants submitted that the claim in this case was made at least as clearly as the claim in MZZQV, where it was held that “a claim made in reasonably broad terms” needed to be considered by the tribunal.

3. The applicant submitted that, in considering the reasonableness of relocation, the Tribunal had confined its consideration of the applicant’s family to the practicality of the family travelling to Islamabad or Rawalpindi. That was a significant issue, given that the relevant road was perilous. However, the applicant submitted that the Tribunal did not consider the practicality of the applicant’s family settling in Islamabad or Rawalpindi. The applicant submitted that the Tribunal’s reasoning showed that it had only considered the reasonableness of the applicant as an individual relocating rather than the reasonableness of the applicant as the head of a large young family relocating.

4. The applicant argued that the practicalities of relocating with a wife and six young children were quite different to the practicalities of relocating as a single adult male. The applicant argued that, as the Tribunal had not considered the practicalities of the applicant relocating with a wife and six young children, the Tribunal had failed to consider whether relocation was reasonable in the personal circumstances of the applicant.

The first respondent’s submissions

1. The first respondent conceded that the Tribunal was required to consider the factors against relocation which are put expressly by an applicant or which fairly arise on the evidence before the Tribunal. The first respondent also submitted that the questions before the Tribunal in a relocation case are:

   a)does the applicant have a well-founded fear of persecution in the proposed place of relocation; and

   b)is it reasonable for the applicant to relocate to that place.

2. The first respondent emphasised that the applicant’s allegedly squarely raised objection to relocation, that he was responsible for six very young children, needed to be seen in context.  The first respondent noted, correctly, that the applicant’s principal objection to relocation was that he would be at risk of harm elsewhere in Pakistan. An unofficial transcript of the tribunal hearing is annexed to the affidavit of Sarah Westwood affirmed on 31 March 2016.  At page 16 of the transcript, the tribunal asked the applicant why he would not be able to resettle in another city in Pakistan. The applicant replied, “The only problem is our safety there”.

3. The first respondent noted that, at page 13 of the transcript, the applicant said:

   There is a risk for me.   If I go to Islamabad … I’d have to get a job to support my family myself and I have to go to mosque and practice my religion.  …  if I do these activities, it mean that I can be easy target for the terrorists unless I just sit at home and do nothing which is not possible.

4. The first respondent said that the applicant’s representative said at page 17, in relation to relocation:

   I think of particular importance in the current case is the fact that the applicant has never ever resided in other parts Pakistan in the past. He has no family support networks in any other area of Pakistan. I note that in Pakistan the culture is very important to have ties within community in order to assist individuals to find work and to assimilate into the society.

   The applicant is not highly educated which would also affect his ability to obtain employment.

   And the applicant has the responsibility for looking after not only himself but also his entire family unit which does consist a number of very young children.

5. The first respondent argued that the objection to relocation that was put related entirely to economic difficulties and not to the practical difficulties of relocating a large family. The first respondent argued that the applicant was now attempting to put a gloss on the evidence given to the tribunal. The first respondent argued that the issue of the practical realities of settling a large family was not one that arose on the materials.

6. The first respondent sought to distinguish this case from MZZQV. The first respondent argued that the claim of a lack of family support was made very clearly in MZZQV.   The first respondent referred to certain written submissions filed on behalf of MZZQV, which were set out as an example of the claims in paragraph 70 of the judgment in MZZQV.  Those submissions were as follows:

   [i]t would be manifestly unreasonable to expect [the appellant] to relocate to another city in Pakistan. The dangers he would face both while travelling and on arrival in an unfamiliar city where he has no supports, and the difficulties he would have finding work and safely accessing education would make the situation very difficult. Furthermore, we submit that relocating to a city in Pakistan alone without any family or community support is not reasonable in the circumstances of [the appellant]. [The appellant] is only 23 years old. His parents and siblings are awaiting visas to live permanently in the United States of America. His extended family reside only in the Swat Valley. It is submitted that it would be difficult for him to live without his parents and siblings, but it would be unreasonable to demand that he also live far away from any extended familial support he may have. (emphasis added)

7. The first respondent also noted that, in MZZQV, a written submission to the tribunal also noted that a previous tribunal had said:

   The family structure is incredibly important for Pakistanis and for Pashtun in particular. If the applicants were to relocate to one of these urban conglomerations they would have few support structures, and only the possibility of finding work, and a young child to care for.

8. The first respondent submitted that, in MZZQV, the issue of the lack of family support have been much more clearly articulated than the issue of resettling a family had been articulated in the present case.

9. The first respondent argued that the present case was also quite different to NAIZ, where the objection that the applicant in that case had “no one to look after her” in Fiji was not expressly stated but was the gist of the matters raised by the applicant: see [18] of NAIZ.  In contrast, the first respondent said that, in the present case, the applicant sought to elevate the simple statement that the applicant had the responsibility of looking after not only himself but his entire family unit into a claim that there were practical difficulties in the family settling in Islamabad or Rawalpindi.

10. When asked by the court whether it was not obvious that it would be more difficult for an entire family to relocate that a single, adult male, the first respondent argued that some argument needed to be put forward by the applicant about why relocation would be unreasonable.  The first respondent emphasised that it was for the applicant to provide sufficient material to satisfy the tribunal of the relevant matters.

Applicant’s submissions in reply

1. In reply, the applicant submitted that the adviser’s submission was intended to convey the practical difficulties of settling a large family in a new city.  Moreover, the applicant argued that the objection to relocation of the practical difficulty of relocating with a large family was put broadly but squarely.

Consideration

1. It is clear that the applicant did not actually say that he objected to relocating to Islamabad or Rawalpindi on the ground that there were practical obstacles to his large family of him, his wife and six children settling there.

2. What the applicant did say, at page 13 of the transcript, is that:

   There is a risk for me.   If I go to Islamabad … I’d have to get a job to support my family myself and I have to go to mosque and practice my religion.  …  if I do these activities, it mean that I can be easy target for the terrorists unless I just sit at home and do nothing which is not possible.

3. This was clearly an objection to the safety of Islamabad.  The applicant was saying that he would be on the streets, to go to work and the mosque, and, consequently, he would be at risk. While the applicant mentioned the need to support his family, that was simply a reason that he would be out and about, rather than safe at home.  On his own evidence, the applicant needed to go out to work to support himself, as much as his family. The tribunal dealt with the applicant’s safety in Islamabad elsewhere in its reasons for decision.

4. At page 15 of the transcript, the tribunal asked the applicant why his father, who is wealthy, and who financially supported the applicant as an adult and who had in the past and was still financially supporting the applicant’s wife and children, would not continue to do so.  The applicant replied that he did not know whether his father would continue to support him.  The tribunal concluded in paragraph 34 its reasons for decision that the applicant’s father was willing to continue to support the applicant and his wife and children.

5. At page 16 of the transcript, the tribunal asked the applicant why he would not be able to settle in another city in Pakistan.  The applicant replied:

   The only problem is our safety there. We are not safe over there because of the Taliban and these different groups. That’s the only issue.

6. Again, the gist of the applicant’s objection to relocation was the safety issue.

7. At page 17 of the transcript, the applicant’s representative said:

   I think of particular importance in the current case is the fact that the applicant has never ever resided in other parts Pakistan in the past. He has no family support networks in any other area of Pakistan. I note that in Pakistan the culture is very important to have ties within the community in order to assist individuals to find work and to assimilate into the society.

   The applicant is not highly educated which would also affect his ability to obtain employment.

   And the applicant has the responsibility for looking after not only himself but also his entire family unit which does consist of a number of very young children. (emphasis added)

8. Clearly, the gist of the submission concerned the applicant’s ability to find work. In my view, the reference to the applicant having the responsibility for looking after his family, in context, meant the financial responsibility.  The tribunal dealt with the question of whether the applicant would be able to find work in paragraph 34 of its reasons for decision.

9. I am not persuaded that the applicant or his representative raised any issue concerning the practical realities of the applicant’s family relocating to Islamabad or Rawalpindi. Nor does it seem to me that that issue arose on the materials. Obviously, it would be more difficult to settle a whole family in a new location than a single, adult male.  However, the applicant did not point to any particular difficulty that would make resettling his whole family in Islamabad or Rawalpindi unreasonable in his particular circumstances.

10. To the extent that any particular difficulty might be said to have arisen on the materials, it would have been the financial difficulty of housing, feeding and educating six children.  However, the applicant himself had said that his father was wealthy and had supported both the applicant as an adult and his wife and children over a considerable period of time.  The tribunal’s finding that the applicant’s father was willing to continue to financially support the applicant and his wife and children answered any issue that might have arisen on the materials regarding the practical realities of settling in Islamabad or Rawalpindi.

11. Moreover, at paragraph of its 35 reasons for decision, the tribunal noted that the applicant had not even suggested that his family would join him in Islamabad or Rawalpindi, if he moved there.  The tribunal said:

    Although not specifically raised by the applicant, the Tribunal also accepts that the applicant may wish his family to join him in Islamabad or Rawalpindi at some point.

12. In circumstances where the applicant had been apart from his wife and children for more than two years after arriving in Australia, and in circumstances where, on the tribunal’s findings, the applicant could instead have safely relocated with his wife and children to Islamabad or Rawalpindi, it was not self-evident that the applicant would have wanted his wife and children to join him. 

13. However, the point is that the applicant did not even say to the tribunal that he wanted his wife and children to join him, much less that there would be practical difficulties in them settling in Rawalpindi or Islamabad.  It is one thing to accept that an objection to relocation can be made in broad terms, or that an objection may be loosely expressed.  It is another to read into the words that were used an objection that was not made, on any fair reading.

14. While it is obvious that it would be more difficult to resettle a whole family than a single, adult male, it does not necessarily follow that the difficulties would rise to the level of making resettlement unreasonable, particularly in circumstances where the applicant’s father was found by the tribunal to be willing to financially support the applicant and his wife and children into the future.

15. I am not persuaded that the ground of review has any merit.  Consequently, the application will be dismissed with costs.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date:     24 June 2016